Rick Koerber, the "Free Capitalist," is charged by federal prosecutors in an alleged $100 million Ponzi scheme. The Utah Attorney General's Office had declined to bring a case based on what it was said was insufficient evidence brought to it by the state Commerce Department. (Associated Press file photo)
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The Utah Department of Commerce confirmed this week that its investigators collected 20 boxes of evidence in its investigation of Rick Koerber, accused by federal prosecutors of running a $100 million Ponzi scheme.

The disclosure from the department calls into question the assertion of state Attorney General Mark Shurt-leff that his office saw only a small amount of evidence and not enough to file a civil complaint against Koerber.

In denying The Tribune 's request for records relating to the Koerber investigation, Commerce Department Executive Director Francine Giani stated that: "The Department no longer has that evidence in its possession. The Department's evidentiary files consist of 20 boxes of files that are currently in the possession of the U.S. Attorney's Office for the federal criminal matter involving Mr. Koerber."

Previously, Commerce and the Attorney General's Office have declined to comment on the amount of evidence.

The issue is significant because Shurtleff's office refused to file a civil complaint prepared by Commerce against Koerber in late 2007 unless the agency provided more evidence to back up the action. Shurtleff said last week the information never came and reiterated that assertion in a Friday interview.

"We did not receive more than enough to fill the lid of one box," he said. "That would be a good question to ask, why [Giani] didn't give that information to us."

Giani eventually took

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the case to the U.S. Attorney's office, and federal prosecutors filed a three-count criminal indictment against Koerber in May, roughly 18 months after Commerce first took the case to the Attorney General's Office.

Both sides are withholding correspondence about the case, citing attorney-client privilege.

"This case is not about the number of boxes but the quality of the evidence collected and our duty to help put together the best possible case," Giani said Friday.

Two months ago, Sen. Steve Urquhart, R-St. George, first revealed that Commerce had given 20 boxes of evidence to the U.S. Attorney's Office, but declined to identify his source.

Urquhart says it is time to clear the air.

He called Shurtleff's representation "significantly misleading."

"Obviously 20 boxes is much more than a lid. I think he felt free to tell that story because he believes his client was muzzled by the attorney-client privilege," said Urquhart, who is an attorney. "I think the governor has to allow the client to clear the air, otherwise the executive branch comes out looking bad in this."

Urquhart is supporting U.S. Sen. Bob Bennett, whom Shurtleff is running against for the Republican Senate nomination, and his wife has organized events for Bennett.

Last week, Shurtleff said the Koerber case is the one he gets asked about the most while he's campaigning for the Senate seat, but he maintains his office handled the case appropriately.

In September 2007, Shurtleff had a breakfast meeting with Koerber at Mimi's Café at the request of Rep. Carl Wimmer. Within weeks, the Commerce Department presented attorneys in Shurtleff's office with the proposed civil complaint against Koerber, but it was turned down for lack of evidence.

"I didn't do or say anything that would compromise the client, but learned some things that caused me some concern," Shurtleff said of the Koerber meeting in an October 2007 e-mail to Blaine Ferguson, the assistant attorney general representing the Commerce Department.

Kirk Torgensen, Shurtleff's chief criminal deputy, told Ferguson in an e-mail the next day that "this thing needs to run its course to see what evidence comes up."

Ferguson wrote to Torgensen in December that "Mark said that once we feel we have a complaint that we are comfortable with ... we can go ahead with it without reviewing it with him."

The Attorney General's Office initially denied an open records request, but later released five e-mails to The Tribune .