Federal prosecutors said Wednesday they intend to retry former real estate guru Rick Koerber, who is accused of illegal business dealings and running a Ponzi scheme, and whose recent jury trial ended in a mistrial.
On Oct. 16, Koerber’s trial ended in a mistrial when the jury was unable to reach a unanimous verdict after deliberating for seven days, following an eight-week trial.
Prosecutors said in a motion filed Wednesday in U.S. District Court that while defense assertions had indicated an overwhelming number of jurors were in favor of acquittal, prosecutors have learned that those claims have no merit.
”Since that time, a number of jurors have volunteered their perspectives relating to their jury service in this matter,” according to the motion, which request a scheduling hearing so a new trial can be set.
“Based upon what we learned from these candid and informative discussions, and based upon the serious crimes alleged and unresolved, the United States will move forward with retrying this case.”
Following the mistrial announcement, Marcus Mumford, Koerber’s attorney, said outside of court that he was told the jury ended its deliberations with 11 of the 12 siding with the defense.
On Wednesday, Mumford said in a prepared statement that the government is not being candid with the public.
“We too have had a chance to talk with multiple jurors — and from these interviews it was made very clear that the breakdown in the jury deliberations, and the failure to reach a verdict, had more to do with the misbehavior of a single juror,” Mumford wrote.
“It was described how that one juror attempted to influence the others with private meetings outside the courthouse, private gifts and benefits, and undisclosed conflicts of interest that had been concealed from the court during the voir dire process and throughout the trial,” Mumford wrote.
“When it appeared that the rest of the jury was ready to render at least a partial verdict acquitting Mr. Koerber, that one juror refused to go along and, in a last-ditch effort, tried to bargain with the other jurors — if they would just vote guilty on any one count, pick one, he would agree to acquit on the rest,” Mumford wrote. “And when the other jurors pointed out how improper it was to even make such a proposal, that one juror terminated deliberations.”
Koerber said following the mistrial that the criminal allegations against him are false, adding that the case would not get better at a second trial.
Noting that he was originally indicted eight years ago, Koerber also said: “Time is on the side of truth.”
U.S. Attorney for Utah John Huber in a Wednesday news release: “While we recognize the cost, time, and energy it will take to retry this case, it is the right thing to do.
“In a case where investors entrusted approximately $100 million to the defendant, of which well over $50 million was redistributed to other investors, a jury should reach a unanimous verdict as to the defendant’s culpability, or lack thereof.
“For either party and for our broader community, justice demands the finality of a unanimous jury verdict.”
Huber added: “We have asked U.S. District Judge Robert J. Shelby to set a status conference at which time the United States will request a firm date for retrial.”
An 18-count indictment accused Koerber of taking about $100 million from investors and using about half as interest payments, paying it back to investors to give the appearance of profitability, from 2004 to 2008. One count was dismissed before the trial began.
When the enterprise stopped making payments in 2007, investors were owed about $47 million, according to the indictment, which was issued in January. Those investors lost life savings, retirement funds and equity in their homes that they had taken out as loans and poured into Koerber‘s businesses.
Koerber used the money for personal purposes and did not pay taxes on it, according to prosecutors.
But Mumford told jurors in his closing argument that his client is innocent. He accused federal prosecutors of deception, saying they presented only “snippets” of Koerber’s business dealings and purposely limited the evidence given to jurors.
Koerber admitted on the witness stand that he did at times take money from new investors to pay interest to previous investors to make the enterprise seem profitable. But he said the money was backed completely by equity in real estate and asserted that that meant he was using the equity to pay interest.
In the early 2000s, Koerber touted himself as a guru of real estate investing and offered classes to teach his “Equity Milling” strategy. That led him to head a real estate investment operation that used that strategy and which ran, in part, on loans from investors.
He still owes people money, the Utah County entrepreneur told reporters after closing arguments as the jury began to deliberate. He said he looks forward to “getting back to work” when this case is behind him. Koerber said he feels “confident” in the judicial process.
Koerber was originally indicted eight years ago, but Mumford challenged the evidence and how federal agents and prosecutors had investigated his client. A federal judge tossed out significant pieces of evidence in 2011 and 2013, and had tossed the case altogether by 2014, due to speedy trial issues.
But prosecutors appealed part of the dismissal to the 10th U.S. Circuit Court of Appeals, which sent the case back to Utah for reconsideration. That process led to the current indictment, which included allegations of securities fraud, wire fraud, money laundering and attempted tax evasion.
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