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Koerber lashes out after Utah 'Ponzi' charges dropped

Published August 16, 2014 12:32 pm

Court • With all the criminal charges dismissed, Utah businessman calls the Ponzi scheme allegations "a lie."
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Free from criminal charges that alleged he operated a $100 million Ponzi scheme from his Utah County real estate businesses, Rick Koerber lashed out Friday at prosecutors and regulators who had subjected him to years of investigation and prosecution.

But U.S. District Judge Clark Waddoups' decision to dismiss 18 federal fraud, money laundering and tax charges against Koerber also prompted angry denunciations from Francine Giani, the executive director of the Department of Commerce who had brought federal authorities into the case. Because of the Koerber case, Giani said she will no longer refer matters to the U.S. Attorney's Office for Utah.

Waddoups issued a ruling on Thursday that dismissed the case against the owner of Utah County-based FranklinSquires Cos. because prosecutors had failed to follow the procedures required by the Speedy Trial Act, and Waddoups emptied both barrels on them for what he said was unethical and unconstitutional conduct.

Six years ago, Giani brought federal authorities into the case after then-Attorney General Mark Shurtleff refused to file a civil lawsuit prepared by the Department of Commerce.

Giani issued a sharply worded statement on Friday blasting Waddoups and prosecutors, including the lead one in the Koerber case, Assistant U.S. Attorney Stewart Walz.

"After all these years of waiting, I am appalled that a federal prosecutor with such a strong reputation can get out maneuvered by committing malfeasance and being unable to count to 70," Giani said, referring to the failure to seek proper exemptions from Speedy Trial Act requirements. "Given the handling of this important case, I do not anticipate the Department of Commerce ever referring cases to federal prosecutors again."

Acting U.S. Attorney Carlie Christensen said she shared Giani's disappointment with the dismissal of the case.

"We strongly disagree, however, with her comments concerning the competence and integrity of the prosecutors in this case and regret that she was not better informed about the case before making her public comments," Christensen said in a statement.

For his part, Koerber, now a Herriman resident, used a news conference at a downtown Salt Lake City hotel to unload on Giani, whom he has blamed for what he saw was a vendetta against him for speaking out against state regulators on his former "Free Capitalist" radio show and in taunting billboards along Interstate 15.

"Because of my radio show and my criticism of government bureaucrats, Francine Giani of the Utah Department of Commerce openly declared at the beginning that she was encouraging this case 'at all costs,'" Koerber said, reading from a prepared statement. "And in this case it turned out to be the law, ethics, rules and the Constitution itself."

He accused Giani of lying about 20 boxes of evidence state regulators had assembled and given to the Attorney General's Office, saying some of the boxes were empty and some were from other cases but were labeled with his name.

Giani declined to comment directly on Koerber's statements about her, but she did single out Waddoups and his repeated clashes with Walz during the Koerber case.

"What I will say is that I am shocked and astounded at how easy it seems for Judge Waddoups to allow his personal dislike for one federal prosecutor to deny justice to so many victims," Giani said.

Shurtleff also issued a statement in the wake of Waddoups' decision that reacted to accusations that he had squelched a proposed state lawsuit as a favor to Koerber, who was politically active at the time.

"Rick Koerber did not give me any campaign contributions, and I never did him any favors," Shurtleff said. "The Office of Attorney General didn't prosecute Koerber in 2007 because my staff attorneys who examined all the evidence concluded it wasn't sufficient to charge him."

That, in turn, prompted Giani to point to the 10 criminal charges pending against Shurtleff, including ones for allegedly accepting or soliciting bribes and accepting a gift.

The charges are not related to the Koerber case, but Giani found similarities, writing: "I believe there is a current criminal action being handled by county attorneys that speaks to this very thing."

Wearing a black cowboy hat and surrounded by his wife, six of his eight children and two friends, Koerber was defiant and passionate like he was at a similar event five years ago when a first indictment was handed up against him.

In criticizing the prosecution of the case, Koerber relied heavily on passages from Waddoups' 17-page ruling that chronicled government mistakes and misconduct that prompted the judge to dismiss the case with prejudice, meaning it can't be refiled.

Koerber also used rhetoric of his "Free Capitalist Project," an antigovernment, pro-unfettered business ideology he promoted before his companies came crashing down in 2007 and 2008.

"While it's hardly news today that the federal government, including the IRS and FBI, have increasingly targeted businessmen and businesswomen and other free citizens whose ideas and political philosophies support liberty and limited government," he said, "it is news that in a very rare, 'peculiar case,' the federal court yesterday essentially convicted the prosecutors rather than the businessmen."

Koerber also again denied the allegation in indictments that he was running a Ponzi scheme in which money from new investors went to pay off more mature investors.

"That was a lie and a false allegation and anyone who saw the books of my company knows that," he said.

Koerber said he was assessing his options on whether he might seek redress for the government actions against him and about future business opportunities.

"Will I be heard from? Probably," he said. "Will I be back doing what I did before? I think I'm wiser. Whatever I do, I hope to benefit from experience."

Koerber still has a judgment of about $1.8 million pending against him, his companies and a partner involved in his FranklinSquires Cos. that resulted from a lawsuit by two investors. He is seeking to appeal that decision.

Reporter Robert Gehrke contributed to this report.







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