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, was in mitigating investment risks. But as it turned out, nestled in Utah's Wasatch Front, Koerber was operating a multi-million-dollar fraud scheme.
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
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 evasion 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 reapplying the factors, the district court decided to dismiss without prejudice. So in 2017 the government reindicted Koerber for the offenses earlier charged in the superseding indictment. Koerber's first trial ended in a hung jury. His second trial ended in jury convictions on all but two counts. The court later imposed a 170-month prison sentence.
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 28 U.S.C. § 1291, we affirm.
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.
With the housing market booming, investors saw this as an opportunity to escape the "rat race." Id. vol. 54 at 11867. Koerber promised investors lucrative returns —between two and five percent monthly. And not only were the high monthly returns enticing, but Koerber also assured investors that this was a "safe" way to earn regular, passive income. Id. at 11778. As Koerber explained, his model held the key to investing: "Take risks, but mitigate those risks to near zero." Id. vol. 57 at 12596. Through his seminars, Koerber taught "specific ways to mitigate risks" based on "sound real estate values." Id. at 12595.
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
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 15 U.S.C. § 77q(a) and § 77x, wire fraud in violation of 18 U.S.C. § 1343 and § 2(b), money laundering in violation of 18 U.S.C. § 1957 and § 2(b), and tax evasion in violation of 26 U.S.C. § 7201.
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 parte." R. vol. 4 at 969. Specifically, he complained that federal prosecutors had actively participated in setting up the agents' interviews with him—even going so far as providing the agents with questions to ask—despite knowing that he was represented by counsel. Under these facts, Koerber argued that the federal prosecutors had violated state legal-ethics rules by causing the agents to make ex-parte contact with Koerber. He further maintained that the prosecutors' actions had violated 28 U.S.C. § 530B (the "McDade Act"), which requires that prosecutors "be subject to State laws and rules." Id. at 986 (citing 28 U.S.C. § 530B). This, Koerber argued, warranted suppression.
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
In response, the government filed a notice of appeal of the suppression order, though it later moved to dismiss after the Solicitor General declined to approve the appeal.
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), 18 U.S.C. §§ 3161-3174. Second, he claimed that the Sixth Amendment's speedy-trial guarantee compelled dismissal in view of the government's five-year delay in prosecuting the case.
After noting the government's concession of an STA violation, Judge Waddoups dismissed the case with prejudice.
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.
V. STA Dismissal without Prejudice
On remand, the case was reassigned to Judge Jill Parrish. Koerber again moved to dismiss with prejudice. After further
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 that he was not bound by the earlier order, because the order had "played no role whatsoever in the final disposition of Koerber I,"
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 18 U.S.C. § 3288 extended the limitations period for six months after August 25, 2016, the date that Judge Parrish dismissed the indictment without prejudice.
VIII. Koerber's First Trial
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 Quick-Books
In addition, Koerber filed a motion to limit testimony and evidence 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 the indictment. These included Koerber's efforts in soliciting investments from feeder funds
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. vol. 54 at 11694. As it turned out, the judge did actively interrupt and question witnesses. But in doing so, he reminded the jury that he wasn't "intimating ... any opinions as to what has or has not been proven in this case." Id. vol. 17 at 4266.
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.
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 Quick-Books files. Sixth, he argues that the court erred by allowing the government to constructively amend his indictment to encompass 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.
I. Issue Preclusion
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.
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, 129 S.Ct. 2145). 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 then later recommenced with a reindictment.
We begin with the elements of issue preclusion in the federal common-law criminal realm.
In Bies, the Court declared that issues are "necessary or essential only when the final outcome hinges on it." Id. at 835, 129 S.Ct. 2145 (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 enforce 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 collateral estoppel effect would make the doctrine proliferate excessively."). We likewise determine that essentiality is a requirement.
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 out-come 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 also fails in part because it rests on the incorrect premise that the dismissal order is the outcome for which the suppression order must be essential."). According to Koerber, the suppression issue needn't be essential to the final dismissal of Koerber I—the suppression order itself can be considered the final judgment. In his words, essentiality
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 necessary to the ultimate outcome of a prior proceeding." 556 U.S. at 829, 129 S.Ct. 2145 (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, 129 S.Ct. 2145 (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. After the district court suppressed the evidence, the government moved to dismiss the indictment because it had no prosecutable case without the child-pornography evidence. Id. at 1098, 1103. As noted, the suppression order "sounded the death knell for the government's case." Id. at 1103.
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 18 U.S.C. § 3731." Appellant's Opening Br. at 28 (citing R. vol. 6 at 1571). Though the government's "certification" represented that it might face increased difficulty in prosecuting the case, it didn't signal that the suppression order was essential to the "ultimate outcome" of Koerber I. Bies, 556 U.S. at 829, 129 S.Ct. 2145. This matters. Though the government may sometimes dismiss a case after substantial evidence is suppressed, oftentimes, as here, the government still seeks a trial date, obviously believing sufficient evidence remains to convict.
Our decision today aligns with the Seventh Circuit's decision in Loera, 714 F.3d at 1030. 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 that "[t]he only ground for that dismissal had been violation of the Speedy Trial Act, a ground to which the motion was irrelevant." Id. at 1030.
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
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 18 U.S.C. § 3731. See Loera, 714 F.3d at 1030. And "[i]nterlocutory appeals are a burden to appellate courts and delay the finality of litigation; they are not to be encouraged." Id.
We find Koerber's arguments unpersuasive and conclude that Judge Shelby wasn't bound to enforce Judge Waddoups's earlier suppression order.
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 Rule 4.2 of Utah's Rules of Professional Conduct, which he concluded in turn amounted to a violation of the McDade Act, Judge Shelby disagreed. Judge Shelby concluded that no state legal-ethics violation had occurred, and that even if one had, suppression would be an improper remedy. Judge Block, "adopt[ing] Judge Shelby's conclusions," also denied Koerber's reasserted motion. R. vol. 15 at 3924-25.
"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 and the ultimate determination of reasonableness de novo. United States v. Cash, 733 F.3d 1264, 1272-73 (10th Cir. 2013) (citations omitted).
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," 28 U.S.C. § 530B. According to him, this amounts to a due-process violation for which suppression is the proper remedy.
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,
In any event, if the federal prosecutors 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] Act that would support such a radical notion." (fourth and fifth alteration in original) (citing United States v. Lowery, 166 F.3d 1119, 1125 (11th Cir. 1999))).
Federal Rule of Evidence 402 states: "Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court." This list is exhaustive and state rules of professional conduct are not included. Lowery, 166 F.3d at 1125 (footnote omitted). Accordingly, otherwise admissible evidence can't be excluded because of a violation of a state rule of professional conduct.
This is true even though Congress referenced local rules in enacting the McDade Act. See 28 U.S.C. § 530B(a) (requiring that prosecutors "be subject to State laws and rules"). We doubt that in enacting § 530B, Congress gave states power to govern the admission of evidence in federal court. If Congress sought to bestow states with this power, it needed to do so more explicitly.
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 denied 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 seventy days of the filing of the indictment, or from the date that the defendant first appears before a judicial officer, whichever is later." United States v. Abdush-Shakur, 465 F.3d 458, 461-62 (10th Cir. 2006) (citations omitted). The statute dictates that an indictment must be dismissed if "more than seventy non-excluded days have passed." United States v. Cano-Silva, 402 F.3d 1031, 1034 (10th Cir. 2005) (citing 18 U.S.C. § 3162(a)).
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.
In determining whether to dismiss a case with or without prejudice, a court
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 on remand by revisiting the third STA factor—the impact of reprosecution. We disagree.
We review a district court's dismissal without prejudice for an abuse of discretion. See United States v. Taylor, 487 U.S. 326, 335, 108 S.Ct. 2413, 101 L.Ed.2d 297 (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 omitted). "Where the delay is the result of intentional dilatory conduct, or a pattern of neglect on the part of the Government, dismissal with prejudice is the appropriate remedy." Id. at 1093-94 (citation omitted). But "a defendant who waits passively while the time runs has less claim to dismissal with prejudice than does a defendant who demands, but does not receive, prompt attention." Id. at 1094 (alteration and citation omitted).
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
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 the government's misconduct in her analysis, and second, by failing to analyze the relationship between the government's misconduct and Koerber's delays. To his second point, he maintains that his delays directly resulted from the government's delays, meaning that he had "good cause" for any delays that he might have caused. Appellant's Opening Br. at 37; see also Appellant's Reply Br. at 17. Neither argument has merit.
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 likewise see no basis for Koerber's suggestion that Judge Parrish failed to consider the government's misconduct in her analysis.
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 material that he had already received. See, e.g., R. vol. 24 at 5903 (requesting "more time to review" the existing discovery materials); id. vol. 27 at 6558 (requesting three months); id. vol. 28 at 6576-77 (requesting five months). Koerber's responsibility for at least some of the delays "substantially undercuts" any weight that we might otherwise attribute in favor of dismissal with prejudice. Saltzman, 984 F.2d at 1094 (quoting United States v. Peeples, 811 F.2d 849, 851 (5th Cir. 1987)).
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 application 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 omitted). To determine whether the district court violated our mandate, we begin by examining the mandate and then consider what the district court did on remand. Id. at 1126 (citations omitted).
Previously, on appeal, this court instructed the district court to weigh the seriousness-of-the-offense factor as supporting a dismissal without prejudice and
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 mandate. The third factor must be weighed with the reevaluated first two factors. After all, the third factor considers whether a dismissal without prejudice would serve the administration of justice— a factor that includes a party's intent to cause delays. See United States v. Toombs, 713 F.3d 1273, 1281 (10th Cir. 2013) (citations omitted). Additionally, the mandate obviously didn't prohibit the district court from considering the third factor. In fact, it gave the district court discretion to determine the ultimate dismissal outcome.
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.
Judge Parrish determined that Koerber's Sixth Amendment right wasn't violated. Even though the seven-plus years of delay in the government's prosecution were presumptively prejudicial and did prejudice Koerber, he shared responsibility for the delay. Not only that, but Judge Parrish noted that Koerber had intentionally delayed his case to obtain a dismissal with prejudice under the STA, and that he had failed to promptly assert his right to a speedy trial—a factor that she weighed heavily against him. We review Koerber's Sixth Amendment claim de novo "but accept the district court's factual determinations unless clear error is shown." United
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. Though this right has been described as "somewhat amorphous, the remedy is severe: dismissal of the indictment with prejudice." Black, 830 F.3d at 1111 (internal quotation marks and citations omitted). The right attaches when a defendant "is arrested or indicted, whichever comes first." United States v. Medina, 918 F.3d 774, 779 (10th Cir. 2019) (citation omitted). But "[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable. At that point, the formerly accused is, at most, in the same position as any other subject of a criminal investigation." United States v. MacDonald, 456 U.S. 1, 8-9, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) (footnote omitted).
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, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. "None of the factors are necessary or sufficient; rather, the factors are related and should be considered together with other relevant circumstances." Gould, 672 F.3d at 936 (citation omitted).
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 that while some of the delays were "symptomatic of the Government's pattern of neglect and dilatory conduct," "many of the delays were attributable to Mr. Koerber's own actions." R. vol. 9 at 2349. And in a key fact finding, Judge Parrish emphasized that "Koerber intentionally delayed his case in order to try and obtain a dismissal with prejudice under the Speedy Trial Act." Id. at 2349-50. Though Koerber argues that the government's misconduct led to his delays, he fails to explain how the district court's contrary factual finding is clearly erroneous. We conclude that this factor is neutral.
C. Defendant's Assertion of His Right
As to the third Barker factor, this court has emphasized that "the defendant's
By his own account, Koerber first asserted his speedy-trial right at a status conference in August 2013. But even then, that was over four years after Koerber's initial indictment. We would be hard-pressed to call his assertions "frequent" or "forceful." See United States v. Latimer, 511 F.2d 498, 501 (10th Cir. 1975) ("We may weigh the frequency and force of the objections." (citation omitted)). And in the meantime, Koerber requested several continuances and deadline extensions—behaviors hardly characteristic of a desire for a speedier process. See Batie, 433 F.3d at 1292 ("[Defendant]'s persistent requests for continuances, even when opposed, scarcely demonstrate a desire for a speedier process." (footnote omitted)). Obviously, we are "unimpressed by a defendant who moves for dismissal on speedy trial grounds when his other conduct indicates a contrary desire." Id. at 1291 (citation omitted). Thus, this factor weighs heavily against Koerber.
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 prejudice, and required criminal defendants to show definite and not speculative prejudice." Margheim, 770 F.3d at 1331 (internal quotation marks and citations omitted). Koerber's failure to make any specific allegations does little to support a finding of prejudice. See id. We acknowledge the prejudice a defendant experiences waiting over seven years for trial. But we have no reason to believe that Judge Parrish erred in her factual findings relating to Koerber's own delay. So Koerber's own conduct contributed to the prejudice.
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
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 of an appeal, within 60 days of the date the dismissal of the indictment ... becomes final." Judge Parrish dismissed Koerber's case without prejudice in August 2016, and Koerber was reindicted less than five months later—in January 2017. All agree that by then the original statute of limitations had expired. According to Koerber, the sixty-day provision governs, and the government missed it. According to the government, the indictment was timely under the six-month provision.
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-day provision to the statute so that the "government can appeal ... and if unsuccessful, still have time in which to bring a new prosecution." R. vol. 13 at 3280-81 (ellipsis in original) (footnote omitted). With that in mind, he concluded that the sixty-day provision "applies only when a district court dismisses an indictment without prejudice, the decision is then appealed, and the appellate court subsequently affirms the dismissal without prejudice. In any other situation, the six-month provision applies." Id. Judge Block later agreed. We review de novo the district court's ruling regarding the applicability of a statute of limitations. Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1266 (10th Cir. 2002) (citation omitted).
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
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 or without prejudice, the six-month limitation period applies. We agree with the government.
In resolving the meaning of § 3288, we apply traditional rules of statutory interpretation. Our goal is to "ascertain the congressional intent and give effect to the legislative will." In re Taylor, 899 F.3d 1126, 1129 (10th Cir. 2018) (citation omitted). We first examine the statute's plain text. Id. (citation omitted). Absent ambiguity, our analysis ends there. See United States v. Manning, 526 F.3d 611, 614 (10th Cir. 2008) (citation omitted). Section 3288 provides as follows:
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 18 U.S.C. § 3288. The text refers only to "the event of an appeal"; it doesn't specify that the sixty-day provision is triggered only when the appellate court affirms a dismissal without prejudice. See id. Because of this, we hold that the plain language of § 3288 is ambiguous, and therefore consider other canons of statutory interpretation to further inform our analysis. See In re Taylor, 899 F.3d at 1129 ("A statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more different senses." (internal quotation marks and citation omitted)).
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 a warrant, and without authorization to seize the files, the government violated the Fourth Amendment by obtaining these records. The government counters that because a private citizen voluntarily provided it the records, the Fourth Amendment isn't implicated. We agree with the government.
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
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) (citation 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 second, "whether the party performing the search intended to assist law enforcement efforts or to further his own ends." United States v. Poe, 556 F.3d 1113, 1123 (10th Cir. 2009) (alteration and citations omitted).
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
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 parameters. 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 Capital. More specifically, he sought to limit evidence to those activities "directly connected with Founders Capital." R. vol. 16 at 3980. The district court denied his motion, allowing testimony at trial that Koerber asserts resulted in his conviction for uncharged conduct. "We review de novo the question of whether an amendment or a variance occurred." United States v. Rosalez, 711 F.3d 1194, 1209 (10th Cir. 2013) (citations omitted).
"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 U.S. Const. amend. VI; then citation omitted). "A fatal variance denies a defendant this fundamental guarantee because it destroys his right to be on notice of the charge brought in the indictment." Id. (citations and footnote omitted).
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"
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," United States v. Stoner, 98 F.3d 527, 531 (10th Cir. 1996) (citation omitted), we conclude that it broadly alleged Koerber's involvement in feeder-fund schemes. For example, it alleged that Koerber "accepted money from individuals and companies through Founders Capital," and that Koerber "communicated his misrepresentations and omissions regarding his schemes, both directly and indirectly, to the investors," the "potential investors," and "intermediaries." R. vol. 10 at 2444 (emphasis added). It also alleged that Koerber "obtained approximately $100 million in investor funds," id. at 2447, thereby naturally contemplating money received from feeder funds.
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).
Third, even if the evidence proved, as Koerber alleges, that neither he nor his companies were connected to these investments, this would merely show that his fraud scheme was narrower than the indictment
Fourth, the government admitted overwhelming evidence at trial of Koerber's "scheme or artifice to defraud"—which included indirect investments. See 18 U.S.C. § 1343; see also R. vol. 10 at 2448. For example, testimony revealed that Koerber refused to accept investments "directly," R. vol. 57 at 12486-87, but that when approached about investment opportunities, Koerber directed potential investors to invest in other pass-through companies, because only "a dozen or so investors [could] give Rick and his companies money," id. at 12479. Downstream investors even requested permission to invest in Koerber's feeder funds. Other testimony at trial supported that some indirect investors wrote their investment checks out to Koerber directly, despite investing in a feeder fund, and some even received interest payments from Founders Capital directly. Still others noted that some of the feeder-fund companies used email addresses for Franklin Squires—a Koerber-owned company —adding to investors' confusion about who they were really investing in.
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).
VII. Judge Interference at Trial
Last, Koerber asserts that Judge Block abused his discretion by interfering at trial. In his words, the district court "suggest[ed] to the jury that Koerber was
This court has stated the general rule that "[a] district court has considerable discretion in running its courtroom." Id. 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 Federal Rule of Evidence 611, district courts have "wide-ranging control over management of their dockets, the courtroom procedures, and the admission of evidence," to ensure "the jury's time [is] not wasted." Banks, 761 F.3d at 1193 (citations omitted). Rule 403 grants courts a similar power to exclude cumulative evidence "in the interests of trial efficiency, time management, and jury comprehension." Jewell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1314 (10th Cir. 2007) (citation omitted). Nonetheless, Koerber claims that the court abused its discretion in the way that it managed four testifying witnesses at trial.
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 the 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 Fed. R. Evid. 611(a)(2) ("The court should exercise reasonable control over ... presenting evidence so as to ... avoid wasting time.").
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 Goodsell after Goodsell testified that he knew little about real-estate-investment risks—despite previous testimony that he did understand the risks. But the court permitted defense counsel to make the representation to the jury that his testimony conflicted prior testimony. Later, when defense counsel repeatedly asked Goodsell whether a promissory note to him made any mention of Founders Capital or Koerber, the court cut counsel off, stating: "We can all read it," and "[t]here is nothing
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 along 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 attempted to narrow the focus of the defense's expert testimony, defense counsel responded that the court's questioning had been "very helpful," and would allow them to "eliminate a lot of slides." R. vol. 61 at 13595.
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
Federal Rule of Evidence 614 gives a judge authority to question witnesses. Though this power is beyond dispute, it is equally clear that in exercising this power, a judge must avoid "creat[ing] the appearance that he or she is less than totally impartial." United States v. Scott, 529 F.3d 1290, 1299 (10th Cir. 2008) (citation and footnote omitted). This is because in a criminal case, a judge's questioning of witnesses before the jury creates a heightened risk that the jury will perceive the judge as an advocate. United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996) (citation omitted). While it is proper for the court to clarify testimony or to uncover the truth, it is improper for the court to assume the role of an advocate for either side. Id. (citation omitted).
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
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 organizations," without clarifying whether that meant Koerber's company or Hunter's Capital. Id. Westmoreland responded, "Yes, sir." Id. at 12427. Based on this interaction, Koerber claims that the judge implied that "defense's questioning was not serious and any contradictions in the witness'[s] testimony should be disregarded." Appellant's Opening Br. at 64.
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.
For the foregoing reasons, we affirm Koerber's conviction.
At sentencing, Judge Block described feeder funds in this way: "You have a network of so-called feeder funds, LLCs, that took me a considerable amount of time to follow the bouncing ball to understand the flow of funds that wound up under the control of Mr. Koerber.... So I'm satisfied that [Koerber's] role in setting up, staffing, [and] advis[ing] the LLCs was at least partly motivated by a desire to ... complicate the scheme so it would be difficult for anyone to figure out what was really ... going on." Id. vol. 64 at 14200.