Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Koerber

United States District Court, D. Utah, Central Division

July 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CLAUD R. KOERBER, Defendant.

          Chief Magistrate Judge Paul M. Warner

          MEMORANDUM DECISION AND ORDER

          FREDERIC BLOCK UNITED STATES DISTRICT JUDGE

         This 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 denied.

         I

         A. Motion to Dismiss on Double Jeopardy Grounds

         Koerber 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).

         Here, 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 “hopelessly deadlocked.”

         Judge 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.

         B. Motion to Suppress February 2009 Interview Statements

         Koerber 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.

         Judge 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.”).

         Second, 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 . . . .”).

         Third, 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 admissible.”).

         The Court agrees with and adopts Judge Shelby's conclusions. Koerber's motion to suppress the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.