Koerber pleaded not guilty five years ago to the day, said his attorney Marcus Mumford, who urged Waddoups on Thursday to dismiss the case with prejudice, meaning Koerber could not face new charges. Mumford's arguments focused on misconduct by prosecutors and investigators beginning before the first indictment.
"The court has now found the government has violated federal law in how they prosecuted this case," Mumford said after the hearing. "At some point this will end."
The lead prosecutor, Assistant U.S. Attorney Stewart Walz, told Waddoups that the delays in getting to trial were largely due to Mumford's actions and that the victims would suffer further harm if prosecutors aren't able to seek a new indictment. He pointed out that Koerber's operations centered around FranklinSquires Cos. and Founders Capital took in $100 million from investors who are owed about $48 million after "Ponzi" payments were made back to them from funds provided by other investors.
"The [decision on] reprosecution has to consider the rights of victims," Walz said.
In the coming months, Waddoups will make the dismissal formal and decide on whether the charges can be refiled.
Under the Speedy Trial Act, if more than 70 days pass after the charged person first appears in court without a trial or other resolution, the case must be dismissed. However, judges can enter exemptions from that requirement because of certain time-consuming court procedures.
In Koerber's case, Mumford argued that at least 125 non-exempt days have passed without a resolution or trial, and prosecutors did not contest Waddoups' statement that he couldn't now go back and grant the exemptions that they failed to seek at the time.
The U.S. Attorney's Office declined to comment on the pending dismissal.
Koerber was originally indicted on three counts in 2009, with 19 additional charges added in a second indictment that November. A third indictment was sought by prosecutors after Waddoups tossed out a key piece of evidence from the first two. Since then, Waddoups also has dismissed two other counts, leaving 18.
The indictments allege Koerber promised investors returns of around 5 percent or higher per month from real estate deals. But his companies did not make profits from 2005 to 2007 and, instead, Koerber paid out around half of the $100 million in investor monies to other investors to make it appear the businesses were highly successful.
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