United States District Court, D. Utah, Central Division
Magistrate Judge Paul M. Warner
MEMORANDUM DECISION AND ORDER
FREDERIC BLOCK UNITED STATES DISTRICT JUDGE
order assumes the parties' familiarity with the facts and
procedural history. Defendant Claud Koerber brings a motion
to dismiss on double jeopardy grounds, and motions to
suppress two February 2009 interviews and a 2005
attorney-client privileged letter. Koerber's motions are
Motion to Dismiss on Double Jeopardy Grounds
first argues that his retrial is barred by the double
jeopardy clause of the Fifth Amendment. The double jeopardy
clause protects a criminal defendant from repeated
prosecutions for the same offense. United States v.
Dinitz, 424 US. 600, 606 (1976). “Where the trial
is terminated over the objection of the defendant, the
classical test for lifting the double jeopardy bar to a
second trial is the ‘manifest necessity' standard .
. . .” Oregon v. Kennedy, 456 U.S. 667, 672
(1982). “[T]he most common form of ‘manifest
necessity' [is] a mistral declared by the judge following
the jury's declaration that it was unable to reach a
verdict.” Id. “The hung jury remains the
prototypical example” of a case meeting the manifest
necessity standard. Id. “The most critical
factor is the jury's own statement that it was unable to
reach a verdict.” United States v. Horn, 583
F.2d 1124, 1127 (10th Cir. 1978).
Judge Nuffer declared a mistrial for manifest necessity
because the jury was hung after over a week of deliberation.
The jury originally indicated they were deadlocked on October
10, 2017 and were given a modified Allen charge on
October 11, 2017. The jury then asked on October 16, 2017
whether a partial verdict was acceptable. They were
instructed that they could return a partial verdict. The same
day, the foreperson sent another note indicating the jury was
Nuffer called a hearing and asked the foreperson whether
additional deliberation would be helpful. The foreperson
answered no. Judge Nuffer then inquired of the jurors
collectively if any disagreed with the foreperson's
assessment. None did. Both before and after calling the jury
in for the hearing, Judge Nuffer asked counsel for both
parties if they had any “commentary or advice”
regarding calling a mistrial. Neither did. Only then did
Judge Nuffer declare a mistrial. This is the
“prototypical example” of manifest necessity.
Motion to Suppress February 2009 Interview
next moves to suppress statements made in non-custodial,
voluntary February 2009 interviews with investigators because
they were made without counsel present. This issue has been
thoroughly addressed. Initially, Judge Waddoups determined
that the interviews violated Utah ethics laws and therefore
also violated Koerber's constitutional rights.
Shelby reconsidered this holding and determined it was clear
error. First, he determined there was no ethics violation
because the interview took place before criminal proceedings
commenced, and the cited no-contact ethics law, Rule 4.2 of
the Utah Rules of Professional Conduct, only applied after
the relationship between the parties became adversarial.
See United States v. Ryan, 903 F.2d 731, 740 (10th
Cir. 1990) (holding “adversarial process had not
begun” prior to the initiation of criminal
proceedings); United States v. Mullins, 613 F.3d
1273, 1289 (10th Cir. 2010) (“[similar Colorado] Rule
4.2 applies, like the Sixth Amendment, only once adversary
criminal proceedings have commenced.”).
he determined that even if there was an ethics violation,
such a violation did not rise to the level of a
constitutional violation or bind the Federal courts. See
United States v. Mullins, 613 F.3d 1273, 1289 (10th Cir.
2010) (“[I]t's unclear whether or when a violation
of an ethics rule should produce an error of
constitutional proportion.”); United
States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973)
(“This [ethics violation] does not necessarily present
a constitutional question, but . . . an ethical and
administrative one . . . .”).
he determined that the appropriate remedy for such a
violation would be sanctions against the attorney, not
suppression of evidence. See United States v. Hill,
197 F.3d 436, 447 (10th Cir. 1999) (holding “even if
the prosecutors' conduct did violate [an ethics rule],
that would not result in the exclusion of [the procured
evidence].”); United States v. Lowery, 166
F.3d 1119, 1125 (11th Cir. 1999) (holding “a state rule
of professional conduct cannot provide an adequate basis for
a federal court to suppress evidence that is otherwise
Court agrees with and adopts Judge Shelby's conclusions.
Koerber's motion to suppress the ...