Rick Koerber, the Utah County businessman facing charges that he ran his real estate investment company as a Ponzi scheme, tried to convince a federal judge Wednesday that he was improperly interviewed by federal agents before he was indicted by a grand jury.
At issue is whether Koerber was represented by an attorney at the time of the February 2009 interviews and, if so, whether the FBI and IRS agents should have conducted them without Koerber’s counsel being present.
Koerber’s current attorney, Marcus Mumford, has told U.S. District Judge Clark Waddoups that the interviews violated Koerber’s rights and federal rules, and he wants any evidence obtained from them to be barred from use by prosecutors who are pursuing 18 counts of fraud, money laundering and tax charges against Koerber.
In testimony Wednesday, Koerber said he was represented at the time by Salt Lake City criminal defense attorney Max Wheeler. That contradicted earlier testimony in which a former state attorney who was working with federal investigators said Wheeler told her that he no longer represented Koerber after he had failed to pay his legal bills.
Koerber said Wheeler did represent him, although he testified he had been unable to contact the attorney from before the first interview on Feb. 13, 2009, until April of that year, when he was told he would be indicted and Wheeler ended their relationship.
"I had not been able to speak directly to Max," Koerber said, although he added that he had talked to two other attorneys in Wheeler’s office and believed they also represented him.
Waddoups continued the hearing until late November to give Mumford time to call Wheeler as a witness.
Previously, FBI Special Agent Cameron Saxey had testified that Koerber had first proposed that he meet with investigators but that members of the U.S. Attorney’s Office had first recommended against a meeting but later agreed after they were told Koerber was not represented by an attorney.
Koerber also testified that he was fearful during the meetings that he would be arrested and that when a question arose about whether he was represented by Wheeler, he declined to abort one of the interviews and leave the FBI offices in Salt Lake City.
"I said, ‘You guys have the badges, I’ll do what you say,’ " Koerber testified.
Koerber was originally indicted on three counts in May 2009, with 19 additional charges added in a second indictment that November. A third indictment was sought by prosecutors after Waddoups tossed out a key piece of evidence from the first two.
The indictments allege Koerber’s real estate investment companies were operated as a Ponzi scheme in which about half of the $100 million they took in were used to make them appear profitable when they were not.
Koerber denies the charges. No trial date has been set.
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