(Part 1) The Targeting of Rick Koerber: A David vs. Goliath Story of Political Prosecution and Corruption Designed to Silence an Outspoken Advocate for Freedom and Capitalism.
Photos Caption: Top left Claud R. “Rick” Koerber with wife Jewel during a federal prison visit circa 2022. Top right attorney Marcus R. Mumford, Rick Koerber, wife Jewel and children outside federal court in 2017 following a hung jury and mistrial in Koerber’s first jury trial. Bottom left to right: Rick Koerber, wife Jewel and family members accompanied by attorneys Marcus Mumford and J. Morgan Philpot at press conference following dismissal of all charges in 2014. Rick Koerber and wife Jewel entering the Utah federal courthouse circa 2013. Rick Koerber at press conference in 2009 following the original federal indictment.
Salt Lake City, UT (DAS) – For almost two decades, Rick Koerber and his family have been fighting for justice in a case that has come to symbolize the troubling reality of modern government overreach and corruption. It all began in 2005, when officials in the Utah state government began targeting Rick, a successful entrepreneur and host of the popular daily talk radio show “Free Capitalist Radio,” in an effort to protect their own power and political position.
Leading the charge was Francine Giani, then Executive Director of the Utah Department of Commerce. She used her influence to have a joint state-federal task force target Rick. At the time, the local United States Attorney was Paul G. Warner, and Giani had influence over both state and federal investigators. Rick had been criticizing Giani and members of her staff, for unlawful overreach. He was also exposing Giani for not being trained in the law yet still empowered to make legal decisions in complex business affairs. This, Rick argued, gave her oversized leverage to manipulate and even blackmail small Utah businesses without any real checks or balances.
Rick openly met with prominent elected officials. He invited state representatives as guests to discuss the issue on his daily radio show. He encouraged Utahans to talk with their representatives, to support a legislative audit of Giani and her office, and to support an effort to relocate Giani’s department under the Utah Attorney General’s office. Rick’s position was the Utah Attorney General is an elective office accountable to voters. Rick started calling Giani and her staff “commissars”, Soviet Communist Party officials responsible for political education to ensure loyalty.
“Oh man, it pissed them off,” Rick recounted in a newspaper interview years later, describing how regulators had also demanded that he take down several billboards. He had designed messages ridiculing Giani and other state officials. Rick also began criticizing then Governor Jon Huntsman, Jr., for allowing Giani to engage in politically driven witch hunts, and to operate without any oversight.
Photos Caption: Left 2007 political cartoon reflecting controversy surrounding Francine Giani (former Executive Director of the Utah Department of Commerce). Right, Rick Koerber in the Free Capitalist Radio studio with guests discussing government regulation and principles of capitalism.
Governor Huntsman weighed in, inviting Rick and several of his colleagues to multiple meetings in Salt Lake City. Huntsman wanted Rick and his partners to make political contributions to Huntsman allies and projects. In at least one instance, Huntsman surrogates suggested that if Rick and his friends agreed to support Huntsman’s political ally, then Presidential candidate Senator John McCain, the problem with Giani would go away. At another meeting with Huntsman and McCain at the downtown Little America hotel things didn’t go well. Rick ended up leaving the meeting explaining he wasn’t looking for “cover” or favors from Huntsman or anyone else. He was looking for someone to check Giani – not as a favor to him, but as a matter of principle.
Weeks later, Rick contacted the campaign of a competitive presidential candidate former New York Governor Rudy Giuliani. “I wanted to make the point, my political efforts and views were my own,” Rick explains about the meeting. He personally invited Giuliani to attend a fundraiser that he would put on, at his home in Alpine, Utah.
Rick gathered more than a thousand of his Free Capitalist Radio audience. When Giuliani arrived, it was a much larger event than what Huntsman had put on for McCain. Reports include an animated conversation with Rick explaining to Giuliani (a former U.S. Attorney) and future Utah Governor Gary Herbert, the Huntsman/Giani situation.
Photo caption: Rick Koerber and Rudy Giuliani at presidential campaign fundraiser. Rick’s Alpine home in 2007.
Just a few short weeks after the Giuliani event, Huntsman and Giani retaliated. A 2007 recording played years later in federal court revealed officials demanding that Rick stop criticizing Huntsman and Giani. If Rick didn’t cooperate, he would be attacked with allegations that he was running a Ponzi-scheme and for evading taxes.
Undeterred, Rick used the recordings made with a simple digital recorder in his pocket and started meeting with elected officials as well as contacts with the Utah Attorney General’s office. Rick wanted to expose Giani and their surrogates. He also started defending other falsely accused Utah businessmen on his radio program, including Gary D. Kennedy. Kennedy is the now exonerated software executive who the New York Times styled, “The C.E.O. Who Would Not Say I Settle“. Rick’s point then, and continuing through today, is that some causes are worth fighting for because they are right.
Kennedy had been accused by federal securities regulators. In response, his own attorney recommended that he settle false allegations of wrongdoing by making a plea agreement. This is quite common, with more than 95% of all federal and state allegations by government officials resolved by agreement. Kennedy and Rick openly discussed how pressure mounts, including negativity from members of the Latter-day Saint community in Utah who often tend to side with government authority figures. This is true, Kennedy and Koerber agreed, because government regulators knew Latter-day Saints would most generally side with the government when damaging allegations are made public. This is despite the history of strong federal government overreach which has historically targeted Latter-day Saints for political reasons.
Huntsman and Giani surrogates responded by threating to destroy Koerber’s reputation, his ability to conduct business, and to make him politically unpopular. In one recording, later admitted into evidence, Rick is heard asking Giani surrogate Wayne Klein (then Director of the Utah Division of Securities) how he could threaten criminal charges when his own staff agreed there was no evidence Rick had “broken any rule or law.” Klein is heard in the recording responding to Rick’s attorneys. “Ordinarily”, he says, regulators require evidence of wrongdoing. “But where your client has gone on the radio and accused us of stuff…and I have regulators out there trying to restrict our powers…I’ve been painted into a corner.” In the recording Klien makes it clear that unless Rick relented, Klien was going to move forward with the unfounded charges.
Court records show that in late 2007, Giani and Klein asked the Utah Attorney General’s office to charge Rick with fraud and tax crimes. But government documents show a whistleblower, Michael Hines (then Director of Enforcement for the Utah Division of Securities) came forward. He presented internal investigation records concluding there was “no evidence” of wrongdoing by Rick. Hines also wrote a memo condemning Giani’s team for trying to bring a politically motivated case against Rick. Hines protested that the Ponzi-scheme theory manufactured by Giani and her staff was “long on conclusions but short on facts.”
In January 2008, the Utah Attorney General responded by publicly announcing the case was closed. He explained despite Giani’s claim of a “mountain of evidence” and “hundreds” of victims, there wasn’t support for any charges.
Giani was livid that the Utah Attorney General would not bring charges. Government records show there was a period of “acrimonious” conflict between her office and the Attorney General. When Shurtleff wouldn’t budge, Giani went to Governor Huntsman. She insisted that she had a mountain of evidence – “20 boxes“. Local and national media have repeated reference Giani’s “mountain of evidence” over the years. But, seldom reported is that a federal judge later ruled Giani’s “mountain of evidence” was false.
[Giani’s boxes amounted to] hundreds of thousands of irrelevant pages of so-called discovery…[designed to] prolong [the government’s] investigation, virtually indefinitely. This is precisely what happened here. The 20 boxes of evidence proved largely irrelevant, gave the government a headline referring to a “mountain” of evidence…and resulted in at least a year of [pointless] delays[.]
United States v. Koerber, Case No. 2:09-cr-00302, 11 n.2 (D. Utah Aug. 14, 2014)
About the same time as the whistleblower’s revelations, and the Attorney General’s decision to close the case, the Utah legislature authorized an audit of Giani. That audit began a series of revelations exposing Giani’s pattern of illegal conduct. But, at the time, Giani remained steadfast in keeping the pressure on Koerber. After meeting with Huntsman, in January 2008 she referred the case to local U.S. Attorney, Bret Tolman.
For over a year, Tolman and the federal government were unable to convince a federal grand jury to indict. Transcripts unsealed years later show members of the grand jury complained about the lack of evidence. The case was going nowhere.
All this changed in late 2008, when Tolman and his staff decided to take matters into their own hands. Court records show that federal prosecutors decided to re-craft the case against Rick, with false evidence. It would take years to prove, but Rick and his attorneys later won several court rulings showing that Assistant U.S. Attorney Stewart Walz overcame Giani’s evidence problem by crafting and carrying out an unethical and illegal scheme to contrive, manipulate, and use false evidence in order to secure an indictment against Rick. The first federal indictment was returned in May 2009. It was based upon the same Ponzi-scheme and tax narrative crafted by Huntsman and Giani back in 2005-2007.
Years later a federal judge condemned the situation in plain terms:
[T]he court “cannot ignore the sordid history of this case, where [Mr. Koerber] has already established how the government intentionally intruded on his constitutional rights and attorney-client relationship to secure an indictment in the first instance.”
United States v. Koerber, Case No. 2:09-cr-00302, 16 (D. Utah Aug. 14, 2014)
U.S. Attorney Tolman later admitted to the Salt Lake Tribune: “I knew that while there were ethical repercussions if you do something you aren’t supposed to do, largely your decisions are unchecked. And so you get a sense — and I did, too — that whatever you do decide to do is the right thing, and you aren’t concerned about what the rules say.”
This admission, along with other evidence of repeated misconduct was uncovered during years of federal court proceedings. It ultimately resulted in the dismissal of the federal case – with prejudice, in 2014. Unfortunately, the fight for justice did not end there. The government simply would not relent. It sought to do everything in its power to ensure Rick was silenced and imprisoned. In May 2019, Rick was incarcerated and later sentenced to serve 170 months in federal prison.
Rick remains imprisoned to this day, serving an almost 15-year federal prison sentence on trumped-up charges. His case has gone through four indictments, more than a dozen prosecutors, the entire federal bench of judges in Utah, multiple defense attorneys, multiple trials, multiple appeals, a petition to the United States Supreme Court, a hung jury, and more. Along with a growing group of supporters, Rick and his family continue to fight for his release and for the right to a fair trial. Not a single “victim” showed up at Rick’s sentencing to speak for the government. None asked for Rick’s incarceration. But virtually every “victim” identified by the government did show up to speak on Rick’s behalf. They asked the judge not to send him to prison. Hundreds of other supporters also showed up and demonstrated at the federal courthouse.
Photos caption: October 2019 sentencing at the Orrin G. Hatch Federal Courthouse in Salt Lake City, Utah. Top left Brad and Mary Colovich were listed by the government as “victims” in Rick’s case. They showed up to speak directly to the judge, and to explain they do not view themselves as victims and to confirm that Rick was “always forthright” and “honest” with them. The judge wouldn’t let them speak. Left middle Ammon Bundy rallied supporters and presented a public account of the whole sordid history of the case against Koerber. Bundy explained that Rick had been part of his legal team, coming to Oregon and Nevada to aid in the successful defense of him and several others. Left bottom Bundy leads a press conference outside the federal courthouse. Bottom right, protestors march around the federal courthouse in Salt Lake City during sentencing in United States v. Koerber. Right middle: Protestor Kelli Stewart wears a “Free Rick Koerber” t-shirt and holds a sign with the same messaging.
This is just a brief overview of the first stage of the nearly two-decade fight waged by Rick and his family against injustice and political government prosecution. In future posts, we will delve deeper into the details of the case and the misconduct that led to Rick’s wrongful conviction. We will also discuss the ongoing efforts to bring Rick home and clear his name.
In the meantime, we ask for your support. Donations to the Defendant Aid Society will go towards supporting Rick and his family as they continue to fight for justice. By standing with Rick, you stand with all of us who could find ourselves in a similar situation. You stand for justice, fairness, and due process. Thank you for your support.