United States District Court, D. Utah, Central Division
M. WARNER CHIEF MAGISTRATE JUDGE
MEMORANDUM DECISION AND ORDER
FREDERIC BLOCK UNITED STATES DISTRICT JUDGE
August 24, 2018, Koerber brought an interlocutory appeal of
the court's order denying his double jeopardy motion and
motion to reconsider. Pursuant to Abney v. United
States, 431 U.S. 651 (1977), holdings on double jeopardy
is appealable before trial under the collateral order
exception. 431 U.S. at 660. However, this procedure does not
render “the trial court powerless to prevent
intentional dilatory tactics by enabling a defendant
unilaterally to obtain a continuance at any time prior to
trial by merely filing a motion, however frivolous, and
appealing the trial court's denial thereof.”
United States v. Hines, 689 F.2d 934, 936-37 (10th
Cir. 1982). As a result, “this potential misuse of
interlocutory review could be prevented if the district court
‘(1) after a hearing and, (2) for substantial reasons
given, (3) found the claim to be frivolous.'”
Stewart v. Donges, 915 F.2d 572, 576 (10th Cir.
court held such a hearing on the morning of August 31, 2018.
As an initial matter, the court notes that Koerber has a long
history of using procedural mechanisms to delay trial. As the
government points out, this is his fifth interlocutory
appeal, and he attempted to pull the same stunt on the eve of
his first trial.
double jeopardy motion and motion for reconsideration were
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
“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
attempts to circumvent the clear weight of Supreme Court law
by attacking Judge Nuffer's impartiality. This argument
is a meritless sideshow that has nothing to do with his
double jeopardy claim.
Koerber waived the argument by not making it in his actual
briefing, instead attaching it to an evidentiary exhibit
submitted more than a week after the briefs were filed. While
Koerber's initial briefing suggested that he may have
additional evidence that Judge Nuffer was not impartial, he
did not present or make arguments regarding that evidence
until well after briefing had closed. Legal arguments are won
by applying law to facts, not by unsubstantiated insinuation
and late-submitted briefs mislabeled as
the argument is meritless. Judge Nuffer was not recused at
the time he declared the hung jury. Koerber's only
argument to support his position is that Judge Nuffer
indicated an intent to recuse himself from cases involving
Koerber's former attorney Marcus Mumford in a prior
letter referring Mumford for disciplinary review. However,
this letter did not effectively recuse him from Koerber's
case; at most, it expressed an intent to recuse. Nothing
prevented Judge Nuffer from revoking that intent. Certainly
he was not required to recuse sua sponte - binding Tenth
Circuit law made that clear. United States v.
Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006)
(“referrals for disciplinary review” do not
“call into question the impartiality of a
judge”). Therefore, Judge Nuffer's eventual
recusal from the case, which did not occur until well after
the mistrial, was prudential, not mandatory.
assuming arguendo that Judge Nuffer should have recused
himself and should not have presided over the question of
whether to declare a hung jury, the remedy would not be the
attachment of double jeopardy. Instead, it would be a
retrial. See, e.g., Williams v.
Pennsylvania, 136 S.Ct. 1899, 1910 (2016) (holding state
court judge erred in failing to recuse himself but remanding
for a new proceeding in which the defendant “may
present his case with assurance that no member of the court
is predisposed to find against him”) (internal
quotation marks omitted); Commonwealth v. Williams,
168 A.3d 97 (Pa. 2017) (following Supreme Court decision,
remanding for new penalty phase trial). Therefore, the
argument regarding Judge Nuffer's failure to recuse
himself has nothing to do with double jeopardy and is not
subject to immediate review under Abney or the
collateral order doctrine. And the only remedy that Koerber
would have available is a retrial with a new judge. This is
the precise remedy he has already received.
Koerber's double jeopardy arguments are frivolous, the
court retains jurisdiction over his retrial. The trial will
commence as scheduled on September 4, 2018.