United States District Court, D. Utah, Central Division
J. Shelby District Judge.
MEMORANDUM DECISION AND ORDER
M. WARNER Chief United States Magistrate Judge.
Judge Robert Shelby referred this matter to Chief Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Defendant Claud R.
Koerber's ("Mr. Koerber") Motion for Bill of
Particulars. Having reviewed the parties' briefs
and the relevant law, the court renders the following
Memorandum Decision and Order.
case involves a long and complex procedural history. Relevant
to the present motion, on May 26, 2009, Mr. Koerber was
indicted in Case No. 2:09-cr-302 before District Judge Clark
Waddoups. Following the original indictment, the government
obtained two superseding indictments on November 10, 2009,
and September 29, 2011. These indictments were litigated over
the course of five years and ultimately resulted in the case
being dismissed with prejudice for Speedy Trial Act
("STA") violations. See United States v.
Koerber, No. 2:09-cr-302, 2014 WL 4060618, at *1 (D.
Utah. Aug. 14, 2014). The government appealed, and the Tenth
Circuit reversed and remanded. See United States v.
Koerber, 813 F.3d 1262 (10th Cir. 2016). The Tenth
Circuit found that Judge Waddoups failed to properly weigh
the STA factors in dismissing the case with prejudice.
Id. On remand, Judge Waddoups recused and the case
was reassigned to Judge Parrish. On a motion to dismiss filed
by Mr. Koerber, Judge Parrish dismissed the case without
prejudice for STA violations. United States v.
Koerber, No. 2:09-cr-302, 2016 WL 4487742 at *1 (D.
Utah. Aug. 25, 2016). As a result, on January 18, 2017, the
government obtained the instant eighteen count indictment
charging Mr. Koerber with securities fraud, wire fraud, money
laundering, and tax evasion.
to the indictment, beginning in 2004, Mr. Koerber created
seminars to encourage individuals to make money through a
real estate program Mr. Koerber called an “Equity
Mill.” Mr. Koerber accepted money through his
company Founders Capital while representing to investors that
Founders Capital would use the money to make “hard
money” or bridge loans to other entities associated
with Founders Capital for the purpose of acquiring real
indictment alleges that Mr. Koerber made several false or
misleading representations to investors to entice them to
invest in his various companies. For example, the government
alleges that Mr. Koerber promised investors specific returns,
claimed his investments were risk free,  advertised that
his investments would be backed by real estate purchases,
represented that his companies were profitable. The
government alleges that most of the money invested with
Founders Capital “was not secured or collateralized by
real estate” but rather Mr. Koerber used funds obtained
from new investors to satisfy earlier
investors. Furthermore, the government claims that
Mr. Koerber used investor funds to pay personal expenses and
purchase expensive items, including luxury cars and minted
on these factual allegations, Counts 1 through 4 of the
indictment charge Mr. Koerber with fraud in the offer and
sale of securities in violation of 15 U.S.C. §§
77q(a) and 77x. Counts 5 through 14 charge Mr. Koerber
with wire fraud in violation of 18 U.S.C. §
1343. Counts 15 and 16 charge Mr. Koerber with
money laundering in violation of 18 U.S.C. §
1957. Finally, Counts 17 and 18 charge Mr.
Koerber with tax evasion in violation of 26 U.S.C. §
7201. Mr. Koerber is set to stand trial on
August 7, 2017.
7(c)(1) of the Federal Rules of Criminal Procedure states
that an indictment “must be a plain, concise, and
definite written statement of the essential facts
constituting the offense charged . . . .” An indictment
is generally sufficient as long as it (1) “contains the
elements of the offense charged and fairly informs a
defendant of the charge against which he [or she] must
defend” and (2) enables the defendant to “plead
an acquittal or conviction in bar of future prosecutions for
the same offense.” Hamling v. United States,
418 U.S. 87, 117 (1974) (citing cases). The sufficiency of an
indictment “is determined by practical rather than
technical considerations.” United States v.
Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988). If a
defendant believes an indictment is insufficient, Rule 7(f)
of the Federal Rules of Criminal Procedure allows a defendant
to move for “a bill of particulars before or within 14
days after arraignment or at a later time if the court
permits.” Like a motion for a more definite
statement, the purpose of a bill of particulars is to
“inform the defendant of the charge against him with
sufficient precision to allow him to prepare his
defense” and “to minimize surprise at
trial.” Dunn, 841 F.2d at 1029 (citation
omitted). Importantly, the court maintains “broad
discretion” to determine whether a bill of particulars
is necessary to aid the defendant in preparing a defense.
Id.; see United States v. Wright, 826 F.2d
938, 942 (10th Cir. 1987).
purpose of a bill of particulars is narrow. A bill of
particulars is not a discovery device, Dunn, 841
F.2d at 1029, nor is it a mechanism to compel the government
to disclose evidentiary details or explain the legal theories
upon which it intends to rely on at trial. United States
v. Gabriel, 715 F.2d 1447, 1449 (10th Cir. 1983).
Moreover, a bill of particulars is not required “when
information necessary for a defendant's defense can be
obtained through ‘some other satisfactory
form.'” United States v. Daniels, 95
F.Supp.2d 1160, 1166 (D. Kan. 2000) (quoting United
States v. Canino, 949 F.2d 928, 949 (7th Cir. 1991)).
For example, a defendant is generally not entitled to a bill
of particulars where he or she has been given complete
Koerber maintains that Counts 1 through 4 of the indictment
do not contain enough detail to enable Mr. Koerber to fairly
prepare for his defense. Mr. Koerber relies on three
arguments to substantiate his request for a bill of
particulars. First, Mr. Koerber relies on Judge Waddoups'
discussion of the sufficiency of the prior indictments in
Case No. 2:09-cr-302. In his prior criminal case, Mr.
Koerber motioned for a bill of particulars. Judge Waddoups
never ruled on Mr. Koerber's motion. However, while
dismissing the case on STA grounds, Judge Waddoups opined:
In light of the significant problems relating to the
indefinites of the information contained in the indictments,
prosecutors seem to be arguing, by virtue of their pursuit of
these allegations, that allegations that would cause a
complaint to ‘fail on its face in a civil action should
be sufficient in a criminal case to put a person in jeopardy
of his liberty and money.' . . . The court stated, at
that time, that it was ‘having trouble seeing how the
[Defendant is] supposed to prepare [his] defense based on the
indefiniteness of this indictment, ' a concern that has
not been alleviated for court in the intervening two years
since the July 2, 2012 hearing.
Koerber, 2014 WL 4060618 at *7. Second, Mr. Koerber
contends that discovery in this case is cumbersome and that
the court's “truncated trial schedule”
necessitates a bill of particulars. Finally, Mr. Koerber
argues that the government should be required to disclose
which of the offenses enumerated in 15 U.S.C. § 77q(a)
the government intends to pursue and what facts the
government is going to rely on to support each securities
outset, the court finds that Judge Waddoups' discussion
of the dismissed indictments in Case No. 2:09-cr-302 is not
binding on this court. Judge Waddoups never decided Mr.
Koerber's motion for a bill of particulars. Moreover, the
particularity or lack of particularity of an indictment has
no bearing on the court's decision to dismiss a case with
or without prejudice for STA violations. See 18
U.S.C. § 3162(a)(2). Therefore, Judge Waddoups'
sufficiency discussion is dicta. Rohrbaugh v. Celotex
Corp., 53 F.3d 1181, 1184 (10th Cir. 1995) (“Dicta
are statements and comments in an opinion concerning some
rule of law or legal proposition not necessarily involved nor
essential to determination of the case in hand.”
(quotations and citation omitted)). Finally, even if the
court were to construe Judge Waddoups' sufficiency
discussion as a holding, the sufficiency of an indictment is
an interlocutory determination that does not bind this court.
See Stewart v. Beach, 701 F.3d 1322, 1329 (10th Cir.
2012) (noting that district courts “generally remain
free” to reconsider their earlier interlocutory orders
(citation omitted)). With this backdrop in mind, the court
will address Mr. Koerber's remaining arguments.
Voluminous Discovery and Purported Truncated Trial
Koerber argues that the voluminous nature of the
government's discovery and the court's
“truncated” trial schedule require the government
to prepare a bill of particulars.Furthermore, Mr. Koerber
claims that discovery in this case is
incomplete. In support, Mr. Koerber notes that he
has filed a motion to compel and a motion for an evidentiary
hearing pursuant to Kastigar v. United States, 406
U.S. 441 (1972). In response, the government argues that
Mr. Koerber has received complete discovery and the
government's preliminary witness and exhibit
lists. Therefore, the government believes that
Mr. Koerber has not carried his burden to demonstrate he is
entitled to a bill of particulars.
recitation of the volume and complexity” of discovery
is insufficient to justify a bill of particulars.
Wright, 826 F.2d at 944. For example, in United
States v. Ivy, 83 F.3d 1266 (10th Cir. 1996), the
defendants appealed the denial of their motion for a bill of
particulars on the grounds that the government had produced
“volumes of discovery” and had failed to specify
the dates or time span of the relevant conduct. Id.
at 1282. The Tenth Circuit affirmed, holding that by
“providing complete discovery containing sufficient
information to allow them to prepare their defense, the
government gave [the defendants] the tools necessary to
anticipate and forestall any surprise that might have
resulted from the indictment.” Id. at 1282.
The court emphasized that once the government provided the
defendants with complete discovery, it became the
defendants' “responsibility to use [the tools] in
preparing their defense, regardless of whether the discovery
was copious and the preparation of the defense was
Ivy, despite the copious and difficult nature of the
discovery in this case, the court is satisfied that Mr.
Koerber has the requisite tools at his disposal to understand
the nature of the charges against him and adequately prepare
for his defense. The court has reviewed numerous indictments
and the present indictment contains more specificity and
detail than the typical indictment filed in this court.
Indeed, the government's securities fraud allegations are
straightforward. The government alleges that Mr. Koerber lied
about the nature of his businesses in order to induce
individuals to invest in his various companies. According to
the government, Mr. Koerber promised investors specific
returns, claimed his investments were risk free, advertised
that the investments would be backed by real estate
purchases, and promised that his companies were profitable.
However, the government alleges, Mr. Koerber did not do as he
promised. The government contends that Mr. Koerber operated a
Ponzi scheme by paying earlier investors with new investor
funds. Furthermore, rather than invest ...