United States v. Koerber (281 F. Supp. 3d 1185, 2017)

ORDER

ROBERT J. SHELBY, United States District Judge

Before.the court are several pretrial motions filed by Defendant Claude Koerber, including a Motion to Dismiss the Indictment as Time-Barred, a Motion to Dismiss the Indictment as Impermissibly Broadened, a Motion, to Dismiss the Indictment for Due Process Violations, a Motion to Dismiss, the Indictment for Speedy Trial Act, Violations, and a Motion to Suppress. The court will address each in turn.

I. Motion to Dismiss the Indictment as Time Barred

Koerber first asks the court to. dismiss the Indictment as time barred. By the time the current Indictment was returned, following dismissal of the 2011 Superseding Indictment without prejudice in the previous case, Koerber I, the statute of limitations had run on all charges. Thus, in bringing the new, otherwise-time-barred Indictment, the United States must rely on 18 U.S.C. § 3288, which allows a new indictment to be returned following the dismissal without prejudice of a previous indictment, even if otherwise time barred.

But the statute imposes a time limit: six months, or “in the event of an appeal, within 60 days of the date the dismissal of the indictment ... becomes final.” This Motion turns on the interpretation of this provision. Specifically, it requires the court to decide whether the sixty-day or six-month term applies, and when the clock starts ticking.

The relevant dates are as follows: The 2011 Superseding Indictment was dismissed with prejudice in August 2014. The Tenth Circuit, in February 2016, reversed the with-prejudice determination and remanded on that point. In August 2016, Judge Parrish dismissed the 2011 Superseding Indictment without prejudice. The present Indictment was returned in January 2017.

Given these dates, Section 3288 tolled the statutes of limitations for the charges in the current Indictment only if the 6-month reindictment period applied, and only if the clock started ticking when Judge Parrish made the without-prejudice determination on remand (and not before). This is the United States’ position. Koer-ber, by contrast, argues that the sixty-day term applies, that the clock started ticking when the Tenth Circuit reversed and remanded, and that even if the clock started, as the United States contends, with Judge Parrish’s dismissal order, the charges in the indictment are still untimely under the sixty-day term. The court will first address whether the six-month or sixty-day provision applies, and will then determine when the clock starts.

A. Whether the Sixty-Day or Six-Month Provision Applies

The initial question is whether the sixty-day or six-month term applies to this case. The language of the statute is not entirely clear on this point. It states:

Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, in the event of an appeal, within 60 days of the date the dismissal of the indictment or information becomes final, or, if no regular grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened, which new indictment shall not be barred by any statute of limitations.

While it might initially seem clear when the sixty-day term applies—“in the event of an appeal”—it turns out in practice that guidance is not entirely conclusive. Does it matter, for example, whether the initial dismissal occurred in the district court or on appeal? If the dismissal occurred in the district court, does it matter whether the dismissal itself or only the prejudice determination is appealed? Which term applies when the appellate court affirms dismissal (or dismisses in the first instance) but remands for a prejudice determination?

The confusion surrounding the application of this term is evidenced by the cases cited in the parties’ briefing, most of which reach competing conclusions on the term’s proper application, and all of which the United States and Koerber both read as supporting their own interpretations of the statute. The Southern District of California, for example, decided that where a district court declined to dismiss for a Speedy Trial Act violation, and the appeals court reversed and remanded for a prejudice determination, the sixty-day provision applied because the court of appeals (not the district court) dismissed the indictment in the first instance. The Northern District of New York determined that where an appellate court vacated á jury verdict based on intervening law, and the United States then filed a superseding indictment within six months but beyond sixty days, the superseding indictment was timely because the sixty-day provision, according to the court, applied only where the district court dismisses an indictment, an appeal follows, and the dismissal becomes final outside Section 3288’s six-month window. Not only do these cases—which the parties contend are the most on-point authority available—not address the procedural posture here, they don’t agree on a rule governing the application of Section 3288’s sixty-day provision more generally, and are thus not particularly helpful.

In short, the text of Section 3288 is not clear on when the sixty-day provision should be applied, nor have courts interpreting the provision reached any consensus. What is clear, however, is the reason Congress added the sixty-day provision, and in the facé of textual ambiguity, such legislative intent is relevant to deciphering a provision’s meaning. The statute previously contained only the six-month provision, which meant the government, after an indictment was dismissed without prejudice, had to choose between appealing the dismissal (which would almost certainly take more than six months) or accepting the decision and bringing a new indictment within six months. Congress added the sixty-day provision to “make clear that the government need not face the unreasonable choice whether to pursue an appeal or accept the lower court’s decision and commence a reprosecution.” In other words, it was added so “the government can appeal ... and if unsuccessful, still have time in which to bring a new prosecution.”

Thus, according to Congress, the provision is relevant only to the situation where the government is in a position to choose between appealing or bringing a new indictment, which is to say, only when the indictment was dismissed by the district court without .prejudice. And it is needed only when the government, after an appeal, is positioned to commence a reprosecution—meaning the appellate court affirmed the district court’s dismissal Without prejudice. Taken together, these premises lead to the conclusion that the sixty-day provision applies only when a district court dismisses an indictment without prejudice, the decision is then appealed, and the appellate court subsequently affirms the dismissal without prejudice. In any other situation, the six-month provision applies.

This casé does not fit that mold. Here, the district court dismissed with prejudice, meaning the United States’ only option was to appeal or accept the decision—it-was not “face[d with] the unreasonable choice whether to pursue an appeal or accept the lower court’s decision and commence a reproseeution.” Indeed, at that point, reprosecution was not- an option. The Tenth Circuit subsequently reversed the with-prejudice determination and remanded for further proceedings, at which point- the question whether .the United States could reindict was still unanswered. Then, the district court ruled the dismissal was without prejudice. No appeal followed. Thus, the standard six-month reindictment term applied.

B. When the Clock Starts

Having concluded Section- 3288’s six-month provision applies, the court addresses when the six-month window started. The statute states the six-month clock starts on “the date of the dismissal of the indictment.” The United States contends the 2011 Superseding Indictment was dismissed in Judge Parrish’s August 2016 order, so that date should trigger the six-month period.

Koerber, by contrast, contends the dismissal triggering the reindictment clock occurred before Judge Parrish’s ruling (in which case, the current Indictment would be time barred)'. He argues Judge Parrish did not actually dismiss the Indictment, she merely made a prejudice determination, so the trigger point for the § 3288 clock must have occurred sometime earlier. This argument has some surface-level appeal, but quickly falls apart. .It implies either that Judge Waddoups’s Dismissal Order was the ruling triggering the rein-dictment clock, or the Tenth Circuit’s mandate was. Koerber does not forcefully argue that Judge Waddoups’s ruling started the clock, and for good reason: as discussed above, the United States had no option to seek reindictment at that point, the 2011 Superseding Indictment having been dismissed with prejudice. Rather, Koerber’s primary argument is that the Tenth Circuit’s mandate affirmed the dismissal, leaving only the prejudice determination to be made on remand, so the mandate should start the clock.

Putting aside for a moment that the dismissal itself was not appealed (so the Tenth Circuit neither affirmed nor reversed it), starting the clock at the mandate appears to do violence to § 3288. It is true, as Koerber argues, everyone at that point knew the Indictment would be dismissed (just as they knew when Judge Waddoups issued his Order, and only the prejudice determination was appealed). But at that point no prejudice determination had been made. And it makes little sense to start the clock to reindict before a prejudice determination is made because the United States, at that point, does not know whether it will even be permitted to seek reindictment.

The prejudice determination is a necessary precursor to reindietment, so it is properly considered part of - the indictment’s “dismissal,” which starts the § 3288 clock. In other words, the “date of the dismissal of the indictment”—the § 3288 trigger starting the six-month clock—must mean the date on which both a dismissal and a prejudice determination have .been made. Were it otherwise, as Koerber suggests, a- diligent prosecutor would be required to expend the resources of the United- States, the grand jury, the court, and relevant witnesses to obtain. a new indictment,-just in case the United - States ultimately prevailed in arguing dismissal without prejudice. And if the defendant prevailed and obtained dismissal with prejudice, all that time and- expense would go to waste. For this reason, the only rational reading of “the date of the dismissal” in § 3288 is the date when both dismissal and a prejudice determination have been made. In this ease, that was Judge Parrish’s August 2016 Order, which was issued less than six months before the current Indictment was returned.

In sum, the procedural history, of this case does .not fit into the 60-day exception Congress drafted into § 3288, so the default six-month term applies. And the triggering point to start the six-month clock was Judge Parrish’s order determining the dismissal was without prejudice—the point at which the United States, for the first time since the Indictment was dismissed; actually had the option to seek a new indictment. The current Indictment was returned within six months of Judge Parrish’s order, and was therefore timely. Koerber’s Motion to Dismiss the Indictment on this basis is denied.

II. Motion to Dismiss the Indictment 1 as Impermissibly Broadened

Koerber next contends that even if the current Indictment was timely under § 3288, the United States cannot rely on the previous Indictments to toll the statute of limitations because the current 2017 Indictment impermissibly broadened the 2011 Indictment (which, he argues, similarly impermissibly broadened the 2009 Superseding Indictment). He also argues that even if subsequent indictments did not im-permissibly broaden previous indictments, the subsequent indictments still cannot rely on previous indictments for tolling because those previous indictments were invalid on due process grounds. Last, he argues the tax evasion counts must be dismissed as time barred because they were not properly pled in prior indictments, so those indictments never tolled the statute of limitations.

A. Whether the Indictments Imper-missibly Broadened Previous Indictments

As discussed above, the statute of limitations had run on all charges by the time the 2017 Indictment was returned, so the United States had to rely on tolling for those charges. Similarly, when the 2011 Superseding Indictment was returned, the statute of limitations had run on thirteen of the twenty charges in the preceding Indictment, so the United States had to rely on tolling for those thirteen charges. The United States can rely on a prior indictment to toll charges in a subsequent indictment only if the charges in the subsequent indictment do not “broaden[] or substantially amend the charges in the [prior] indictment.” Koerber contends that one or more charges in the 2011 Superseding Indictment and 2017 Indictment did broaden or substantially amend charges in preceding indictments, and on that basis the indictments should be dismissed (because the statute of limitations ran on any charges not properly tolled).

Determining whether a charge impermissibly broadens or amends a charge in a prior indictment turns on notice to the defendant. The rationale for requiring that an indictment be returned within the statute of limitations is to “ap-pris[e defendants] that they will be called to account for their activities and should prepare a defense,” and to do so before “basic facts ... become obscured by the passage of time. Thus, any subsequent amendment of an indictment, even if made after the limitations period has run, does not run afoul of the rationale underlying the statute of limitations so long as the new charges do not materially change how the defendant must defend himself. The Tenth Circuit has framed this principle as requiring that “the allegations and charges contained in the superseding indictment [be] ‘substantially the same’ as those contained in the original indictment,” in which case, “sufficient notice is presumed.” And “substantially the same,”.in this context, means “that essentially the same facts were used to charge almost identical offenses.”

Thus, whether statutes of limitations for charges in the 2017 Indictment or 2011 Superseding Indictment were properly tolled turns on whether those charges broadened or substantially amended charges in a previous indictment. And that question turns on whether the prior indictments provided Koerber sufficient notice of the charges currently pending against him—that is, whether the subsequent charges were substantially the same as previous charges in that essentially the same facts were used to charge almost identical offenses. With this framework in mind, the court addresses thirteen discrete changes Koerber contends • impermissibly broadened the indictments (ten between the 2009 and 2011 Superseding Indictments, and three between the 2011 Superseding Indictment and the 2017 Indictment).

i. 2011 Superseding Indictment— Change 1

Change 1 is the following:

Franklin Squires' Investments, LLC, and'Franklin Squires Companies, LLC, were Utah Limited Liability Companies associated with Defendant KOERBER and Founders Capital,' over which the Defendant Koerber exercised almost complete control.

Koerber contends he was not previously on notice that he had to defend against being in control of Franklin Squires Investments and Franklin Squires Companies, as opposed to merely being associated with them. But 'Paragraph 17 of the 2009 Superseding Indictment referred to “the Founders Capital [and] Franklin Squires entities” as “operated by Defendant Koerber.” This is essentially the same allegation as “exercising almost complete control.” Moreover, as the United States points out, the degree of control Koerber asserted is ultimately immaterial to the fraud charges, which require only Koer-ber’s participation in the fraud with the requisite mens rea. ■

ii, 2011 Superseding Indictment— Change 2

Change 2 is the following:

Defendant KOERBER accepted money from individuals and companies through Founders Capital, and with the representation that Founders Capital would use the money to make “hard money” or. bridge loans to other entities associated with Founders Capital.. .for the purpose of acquiring real property for use in the ‘Equity Mill.’ The Defendant KOERBER exercised control of these entities as well. ' ■'

Koerber contends he previously had notice only that he had to defend the acts of himself and Founders Capital, but this change requires him to defend the acts of four other Equity Mill, companies, with whom the 2009 Superseding Indictment alleged he was only “associated.” He further contends this change affects defenses related to the disclosures he would have had to make to investors, because he would, have to disclose that he controlled borrowing entities (in addition to Founders Capital, the lending entity). But Paragraph 16 of the 2009 Superseding Indictment alleged that Koerber “operated the businesses of Founders Capital and related entities,” meaning those associated with Founders Capital, like the Equity Mill companies referred to above. Further, Paragraph 14 of that Indictment alleged that “most of the ' money placed with Founders Capital was not used for real estate purchases and ... a substantial amount of money was diverted to other purposes because Defendant KOERBER almost exclusively controlled the use of the funds placed into Founders Capital,” so Koerber was on notice that he had to defend against the charge that money allegedly going to associated Equity Mill companies was under his control. The court concludes this change essentially recites the same facts as were contained in the 2009 Superseding Indictment,

iii. 2011 Superseding Indictment-Change 3

Change 3 is the following:

Defendant KOERBER knew these ads were false and misleading because Franklin Squires never made a profit in 2005, 2006 and 2007 and in fact lost money in those years, that the 1-5% paid on investors’ money came from other investors’ money as described below, and that the money invested was hot safe. The investments placed in Founders Capital were not safe because when Founders Capital stopped making payments to investors in 2007, investors lost approximately $50 million.

Koerber contends he had no notice of this change because the 2009 Superseding Indictment did not list a dollar amount loss and it alleged only that Franklin Squires never made a prpfit, not that investors actually lost money. The gist of this paragraph, however, is that Franklin Squires’s ads falsely portrayed the company as profitable and the investments as safe. While the additional detail of investors losing $50 million provides more evidence the investments were unsafe and the ads misleading, it does not fundamentally alter the nature of the allegations against which Koerber must defend. Nor does the addition that payments stopped, and that they stopped in 2007. Although Koerber contends he was unaware he needed to assert the defense that “investors did indeed receive payments, and even payments in full,” he was on notice in the 2009 Superseding Indictment that the government would attempt to prove he was defrauding investors, that he was using investor money for personal purposes, that he was using investor money to pay other investors, that his companies never made a profit, despite ostensibly..paying “interest” to investors, and that the entire scheme ended in 2008. Making explicit that Koerber stopped paying investors, and that he did so in 2007, does not materially change the defense Koerber must mount,

iv. 2011 Superseding Indictment— Change 4

Change 4 is the following:

“KOERBER told investors that the investment was risk free or that there was little risk because the investments were backed by real estate. Early in the scheme, promissory notes given by Founders Capital listed the address of property that was to serve as collateral for the money placed in Founders.”

Koerber contends this addition requires him to alter his defense because it implies that some promissory notes listed property securing the note and some did not. Paragraph 10 of the 2009 Superseding Indictment, however, put Koerber on notice that the United States intended to argue that he represented to investors that their investments “[a]re usually backed, collateral-ized or secured by real property.” And Paragraph 4 of the 2009 Superseding Indictment put Koerber on notice that he must defend against the charge that in reality, “most of the money placed with Founders Capital was not used for real estate purchases and ... .a substantial amount of the money was diverted for. other purposes.” These are essentially the same allegations as the implication that some promissory notes were backed by real estate and some-were not.

v. 2011 Superseding Indictment— Change 5

Change 5 is the deletion of Paragraphs 10, 11, and 12 from the 2009 Superseding Indictment, which was motivated' by the court’s determination that the Indictment relied on privileged material. This deletion was a narrowing, not ¡a broadening of the Indictment. - ...

vi. 2011 Superseding Indictment— Change 6

Change 6 is the following:

“It was further a part of the scheme and artifice to defraud that Defendant KOERBER knew that most of the money placed with Founders Capital was not used for the “Equity- Mill” or to fund real estate purchases and knew that a substantial amount of the money was diverted for other purposes because Defendant Koerber almost exclusively controlled the use of funds placed into Founders Capital.”

Koerber contends this change exposes him to a conviction on the misuse of funds for the Equity Mill, in addition to misuse of funds for. purchase of real estate more generally. Paragraph 5 of the 2009 Superseding Indictment alleges that Koer-ber’s real estate program, was “named the ‘Equity Mill,’ ” so adding that detail here does not alter how he must defend the charge.

vii. 2011 Superseding Indictment— Change 7

Change 7 is the following:

For example, Defendant Koerber caused the following:

a. Over $850,000 to be spent on restaurants;

b. $800,000 to be loaned to an associate for a restaurant;

c. Over $1,000,000 to be spent on expensive automobiles;

d. Over $5 million to be spent making a movie;;

e. Over $975,000 to be loaned to an unprofitable academy; and

f. Over $425,000 to bé spent on the minting of coins,-

Koerber contends he did not have notice that he needed,to gather evidence related to the loan or the coin minting. Paragraphs 13-15 of the 2009 Superseding Indictment gave Koerber notice he had to defend against charges .he used investor money for personal purposes, so adding two examples of that use does not substantially, change how Koerber must defend himself.

viii.2011 Superseding Indictment— Change 8

Change 8 adds the following paragraphs:

It. was further a part of the scheme and artifice to defraud that despite spending some of the investors’ money on the items in the immediately preceding ■paragraph, and, others, ostensibly in order- to . make money, the Defendant KOERBER did not inform investors that the nature , of their “investment” had changed until after the money was spent.

It was further a part of the scheme and artifice to defraud that the Defendant KOERBER also spent some of the investor’s money under his control on personal expenses including the adoption of his children .and having his teeth fixed.

Koerber contends this change has the same notice 'implications as the previous change^ and that it additionally requires him to defend against the charge that he did not inform investors he had used money for personal purposes. These allegations, however, are merely “a slightly different mix of closely related” allegations and violations previously asserted and do not change the essential nature of the United States’ theory.

ix. 2011 Superseding Indictment— Change 9

Change 9 is the following:

It was further part of the scheme and artifice to defraud that despite the fact that neither Founders Capital nor Franklin Squires made a profit in 2005, 2006 and 2007, the Defendant KOER-BER falsely and fraudulently stated in an article distributed to investors and potential investors that in 2005, the Franklin Squires Companies did $111 million in revenue and in 2006 the ■Franklin Squires Companies company [Franklin Squires] and the businesses in which Franklin Squires had a substantial interest generated revenues in excess of $500. million.

Koerber contends the original paragraph implies revenues of $111 million in 2005 and $500 million in 2006, but the change implies revenues of $111 million in 2005 and $611 million in 2006. The court disagrees. The plain language of the both the 2011 and 2009 Superseding Indictments states that Koerber represented $111 million in revenue for 2005 and $500 million in 2006.

x. 2011 Superseding Indictment— Change 10

Change 10 adds the following paragraph:

It was further part of the scheme and artifice to defraud that the article touting the profitability of the Defendant KOERBER’s companies, the photographs of “his cabin” and his home, and the photographs of the Defendant in an expensive car and with his minted coins were published in the Creative Real Estate Lifestyles Magazine. The Defendant Koerber funded this magazine using some investor’s funds, which the Defendant failed to disclose.

The 2009 Superseding Indictment previously stated that Koerber bought expensive cars, showed photographs of his mansion, claimed he owned a cabin, and minted his own gold coins. Koerber contends the above change adds allegations that there was a magazine article depicting these things, that Koerber caused the article to be published, and that he funded the magazine as part of the scheme. But the 2009 Superseding Indictment gave Koerber notice of the character of fraud he would have to defend against (e.g., using investor money for personal gain), and this change represents merely “a slightly different mix of closely related” allegations, not a change to the essential nature of the United States’ theory.

Thus, none of the changes Koerber identifies in the 2011 Superseding Indictment impermissibly broaden or substantially amend the 2009 Superseding Indictment. Koerber contends, however, that even if the 2011 Superseding Indictment did not impermissibly broaden the 2009 Superseding Indictment, the current 2017 Indictment impermissibly broadened the 2011 Superseding Indictment. Koerber points to three changes:

i. 2017 Superseding Indictment— Change 1

Change 1 is the following:

Founders Capital, LLC (Founders Capital) was a Utah Limited Liability Company formed in or around April 2005 and associated with Defendant KOERBER, and over which the Defendant KOER-BER exercised almost complete financial control. Founders Capital received investment monies, sometimes termed as loans, form victims of the scheme and artifice to defraud alleged below.

Koerber contends this change is impermissible for the same reason the first change he identified in the 2011 Superseding Indictment was impermissible: he was not on notice he had to defend against the actions of Founders Capital generally. But, as discussed, paragraph 17 of the 2009 Superseding Indictment referred to “the Founders Capital [and] Franklin Squires entities” as “operated by Defendant Koer-ber.” This is essentially the same allegation as “exercising almost complete control.” Moreover, as the United States points out, the degree of control Koerber asserted is ultimately immaterial to the fraud charges, which require only Koer-ber’s participation in the fraud with the requisite mens rea.

ii. 2017 Superseding Indictment— Change 2

Change 2 is the following:

It was further a part of the scheme and artifice to defraud that Defendant KOERBER represented to investors and potential investors that through the “Equity Mill,” substantial amounts of money could be made. Defendant KOERBER, until the scheme collapsed, paid varying amounts of interest on the money provided to Founders Capital, but most generally 5% per month to its first line investors.

Koerber contends this change requires him to defend against the new allegation that the scheme collapsed and that the collapse marked the end of interest payments. The 2009 Superseding Indictment put Koerber on notice that he must defend against allegations that his interest payments to investors would be at issue, that investors lost significant amounts of money, and that the scheme ended in 2008. The additional evidentiary detail that the end was a collapse, that investors stopped receiving interest payments at some point, and that point was when the scheme collapsed, does not change the manner in which Koerber must defend himself.

iii. 2017 Superseding Indictment— Change 3

Change 3 is the following:

It was further a part of the scheme and artifice to defraud that Defendant KOERBER used investors’ money for purposes not disclosed to many investors and potential investors with Founders Capital, such as for Defendant KOER-BER’s personal housing, other personal expenses, expensive automobiles, investments into restaurants, and unsecured loans to other businesses and entities.

Koerber contends he was not previously on notice he had to ' defend against the charge that he lost investor money, as opposed to Founders Capital money not received from investors. The 2009 Superseding Indictment put Koerber on notice he had to defend against charges that investors invested money in Founders Capital, that he used money “invested with Founders Capital” for “purposes other than real estate bridge loans and to fund the purchase of real property,” that the “nature of [the investors’] ‘investment’ had changed,” that he “spent- some of the investors’ money under his control on personal expenses,” and that “[o]ver $S0 million [in] investor funds were used to make Ponzi payments.” Koerber was on notice that the United States planned to argue he spent investor money.

In sum, none of the changes Koerber has identified to the 2011 Superseding Indictment or the current 2017 Indictment impermissibly broadened or substantially amended charges or allegations from previous indictments. By the time the statute of limitations had run on all of the pending charges against Koerber, he had notice of what he needed to defend himself. The court declines to dismiss the current Indictment or strike any of its allegations.

B. Whether Previous Indictments Were Invalid on Due Process Grounds

Koerber next contends that even if none of the indictments impermissibly broadened previous indictments, one or more of the indictments was invalid on due process grounds, and were therefore not validly pending and could not toll the statutes of limitations. This argument relies on findings and conclusions by Judge Waddoups in Koerber I, and, specifically, on his conclusion that a due process violation had occurred under United States v. Ballivian. The court fully addresses this argument in Section III below, and based on that analysis declines to conclude that one or more indictments were invalid on due process grounds.

C. Whether the Tax Evasion Charges Are Time Barred

Koerber’s final argument is that the tax evasion charges are time barred because they have consistently been improperly pled, and those charges in the previous indictments therefore did not toll the statutes of limitations. This argument turns on whether the indictments properly allege an affirmative act of evasion, which is a material element of tax evasion. And specifically, it turns on whether failing to file a return, coupled with “causing various business entities under the control of the Defendant Koerber to pay personal expenses on his behalf,” sufficiently alleges an affirmative act of evasion.

Affirmative acts of evasion can “be inferred from conduct such as ... covering up sources of income, handling one’s, affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or conceal.” Causing a business entity to pay personal expenses, and not filing a return, constitutes covering up a source of income and is conduct likely to mislead or conceal. Each of the indicts ments contains this allegation, so these charges were validly pending and tolled the statute of limitations on the tax charges.

Because Koerber has not demonstrated that any indictments impermissibly broadened or substantially amended a prior indictment, that a prior indictment was invalid on due process grounds, or that charges were improperly pled, he has not shown any charges are time barred for lack of tolling, and the Motion to Dismiss on this basis is denied.

III. Motion to Dismiss for Due Process Violations

Next is Koerber’s Motion to Dismiss for Due Process Violations. In this Motion, Koerber argues the Indictment should be dismissed for various due process violations that occurred in Koerber I. Alternatively, he requests a Kas%ar-like hearing in , which the United States would be required to prove by a preponderance of the evidence that it is able to proceed to trial without relying on privileged or previously-suppressed evidence. • Finally, he asks that United States attorneys and staff previously exposed to his privileged information be disqualified from the case.

A. Due Process Violations in Koer-ber I

The court first addresses' Koer-ber’s argument that the Indictment should be dismissed on due process grounds. Koerber argues that under an Eleventh Circuit case, United States v. Ballivian, an indictment may be dismissed if the defendant can show “government misconduct” in conjunction with actual prejudice,, a substantial threat of actual prejudice, or a pattern of widespread and continuous misconduct. Koerber provides seven grounds on which he contends' his due process rights were violated: (1) the 2009 interviews; (2) violations of the attorney-client privilege; (3) grand jury abuse; (4) pretrial delay; (5) discovery abuses; (6) conscience-shocking government conduct;- and (7) general violations that warrant invocation of the court’s inherent supervisory power. The court will address each in turn.

Koerber first contends the United States’ conduct in connection with the 2009 interviews warrants dismissal because Judge Waddoups previously concluded that conduct constituted a due process violation. He further contends Judge Wad-doups’s remedy of suppression was not sufficient, and because he suffered prejudice, dismissal under Ballivian and related cases. js appropriate. Koerber filed this Motion before the court’s June 30 ruling in which it determined Judge Waddoups’s legal conclusions related to the suppression issue had no preclusive effect in this case, and in which it declined to follow his conclusions that the United States had engaged in misconduct, that the misconduct constituted a Fifth Amendment violation, ■and that suppression was warranted. Because Koerber’s present, argument seeking dismissal'based on the 2009 interviews seemingly hinges on these conclusions by Judge Waddoups, and because the arguments were presented before the court announced those conclusions were not binding in this case, the court denies this portion .of Koerber’s Motion without prejudice to Koerber reasserting these arguments in- a separate motion, if he determines there is reason, apart from Judge .Waddoups’s legal conclusions, to do so.

Koerber’s next argument is that intrusions into his attorney' client privilege in Koerber I constituted a due procéss violation, and because he was prejudiced, dismissal of the indictment is appropriate. Here, Koerber relies on Shillinger v. Ha-worth, where the Tenth Circuit held that a prosecutor’s intentional intrusion into the attorney-client relationship in most cases constitutes a per se violation of the Sixth Amendment; But Koerber doesn’t allege a Sixth Amendment violation; rather, he contends his “rights under the Due Process'Clause have been violated by prosecu-torial misconduct occurring prior to indictment.” The “prosecutorial misconduct” alleged here is the United States’ 2009 interviews and their alleged use of privileged information.

As discussed, the court will not adopt Judge Waddoups’s ruling that the 2009 interviews violated Koerber’s constitutional rights, and Koerber has not otherwise shown in this briefing that they do. As to the “To Our Lenders” letter that was relied on in the 2009 Indictments, and was later deemed privileged, Koerber has not shown how the United States’ previous reliance on that letter (before it was deemed privileged) constituted a Fifth or Sixth Amendment violation. After the letter was deemed privileged, the United States brought the 2011 Superseding Indictment and removed charges and allegations related to the letter. Judge Wad-doups determined, after reviewing the grand jury transcripts, that the privileged letter had nothing to fio with the 2011 Superseding Indictment, and Koerber has given this court no reason to revisit that conclusion. Rather, Koerber’s argument seems to be that the residual taint from the letter continues to infect the case because it became a roadmap to the subsequent investigation and prosecution.

Even assuming Koerber is prejudiced by the United States’ past exposure to the “To Our Lenders” letter, it does not appear to the court that the United States engaged in any misconduct related to the letter. Koerber produced the letter to the United States, and over two years later, the United States contacted Koerber over a different document he produced that the United States believed may have been privileged, at which point Koerber claimed privilege over a range of documents, including the “To Our Lenders” letter. After some litigation—during which the Magistrate concluded the United States acted “in good faith”—Judge Waddoups determined the letter was privileged, and the United States returned or destroyed copies of the privileged letter (save for three missed copies that were later discovered by the United States and destroyed in May 2017). The United States returned a new indictment that, as discussed, Judge Waddoups concluded in no way relied on the privileged letter.

Nothing about this conduct establishes the United States engaged in misconduct related to the letter. Indeed, Judge Wad-doups, when he determined the letter to be privileged, concluded there was no “evidence that the government was ... intentionally tryfing] to interfere with [Koer-ber’s] privilege in its interactions with his attorneys and related persons.” Because Koerber has not shown the United States engaged in misconduct related to the privileged letter, this is not a basis to dismiss the indictment.

Koerber next contends that the Indictment should be dismissed for “grand jury abuse.” Koerber’s argument is not entirely clear on this point, but it appears he believes the grand jury that returned the current Indictment must have relied on either suppressed or privileged evidence because the current Indictment is so similar to previous indictments. Koerber has provided no evidence to support these allegations. Indeed, contrary to these allegations, Judge Waddoups reviewed the grand jury proceedings related to the 2011 Superseding Indictment and determined the privileged letter played no role in those proceedings. And as to the 2009 interviews, even if the grand jury had relied on the previously-suppressed interviews (an allegation, again, that is unsupported by any evidence), such reliance is now immaterial because the suppression order is no longer in effect.

Koerber also contends the Indictment should be dismissed because pretrial delay compromised his due process rights to a fair trial. In so arguing he cites extensively to Judge Waddoups’s Dismissal Order, but that order was reversed, and in the subsequent Dismissal Order, Judge Parrish made clear that Koerber was “culpable for much of the delay in this case.” Koerber has not shown that any delay attributable solely to the United States compromised his due process right to a fair trial.

Koerber next argues that the United States’ discovery abuses warrant dismissal of the Indictment. He contends the United States purposefully delayed the case to contribute to the staleness of important evidence. As just discussed, the delay findings on which Koerber primarily relies were part of a Dismissal Order that was later reversed, and the subsequent Dismissal Order comes to a different conclusion, pinning much of that delay on Koer-ber. Even assuming the United States was less-than-careful with some of its discovery decisions in this case, Koerber has not shown this conduct rises to the level warranting dismissal of the Indictment.

Koerber also argues that the United States’ conduct “shocks the universal sense of justice,” and the Indictment should therefore be dismissed. In so arguing he relies on Judge Waddoups’s conclusions that prosecutors “have been strikingly unwilling to conform their own conduct to the Constitution, the applicable ethical standards, rules and statutes.” The court, however, has declined to adopt Judge Waddoups’s conclusion that the United States violated the Constitution, ethical standards, rules, or statutes. Thus, the United States’ failure to own up to these alleged violations does not shock the universal sense of justice.

Koerber’s final argument is that even if the United States’ conduct does not rise to the level of a due process violation, it does constitute “reckless disregard,” so the court should invoke its supervisory powers to dismiss the Indictment. He contends the United States exhibited reckless disregard because it “violated recognized rights,” it “threatened judicial integrity by polluting the administration of justice,” and it “must be deterred to prevent future misconduct.” As discussed, Koerber has not shown the United States has engaged in misconduct sufficiently serious to warrant dismissing the Indictment, and the court declines to exercise its supervisory powers to do so.

B. Kastigar-Type Hearing & Disqualification of Prosecutors

Koerber alternatively requests a “Kasti-gar- type hearing” where the United States would be required to show it can proceed to trial without relying on previously-suppressed or privileged evidence. Because the court declines to follow the Koerber I Suppression Order, a Kastigar-type hearing on that basis is not necessary. Nor is it necessary with regard to the privileged letter. As discussed, Judge Waddoups already reviewed the grand jury proceedings for the 2011 Superseding Indictment and concluded the privileged letter played no part in that Indictment, and Koerber has provided no reason to question the United States’ representation that it is..not currently relying on the privileged letter. Finally/for the same reasons Koerber’s due process and Kastigar-related requests are denied, the court declines to disqualify the prosecutors on the case.

As discussed, much of this Motion relied on orders previously filed in Koerber /, and specifically, the Koerber I Suppression Order. The coprt has now ruled it is not bound by and will not follow the Koerber I Suppression Order, but did so after the current Motion was filed. As stated above, to the extent the Motion’s arguments do not rely on the Suppression Order or any other Koerber I Order, the Motion is denied. To the extent arguments rely on Koerber I orders, these parts of the Motion are denied without prejudice to Koer-ber reasserting them if he believes he has a basis to do so independent of reliance on Koerber I findings and conclusions.

IV. Motion to Dismiss for Speedy Trial Act Violations

Koerber also moves to dismiss the Indictment under the Speedy Trial Act. He first contends Judge Parrish impermissi-bly exceeded the Tenth Circuit’s mandate, that she should have dismissed the 2011 Superseding Indictment with prejudice, and that the court should now do so. He next argues that the Speedy Trial Act was violated after remand, but before the current Indictment was returned. Last, he argues the Speedy Trial Act was violated after the current Indictment was returned. The court addresses each argument in turn.

A. Whether Judge Parrish Exceeded the Tenth Circuit’s Mandate

Koerber first argues the Indictment should be dismissed with prejudice for Speedy Trial Act violations because Judge Parrish exceeded the Tenth Circuit’s mandate on remand.' The Tenth Circuit reviewed Judge Waddoups’s treatment of the three factors related to a speedy trial prejudice determination and reversed and remanded on two of the factors. On the first factor, the seriousness of the offense, the Tenth Circuit concluded Judge Waddoups did not acknowledge that the seriousness of the offense in this case favored dismissal without prejudice, and he included three impermissible considerations related to this factor. With regard to the second factor, the facts and circumstances that led to dismissal, the Tenth Circuit determined Judge Waddoups correctly concluded and considered that on several occasions the United States did not adequately ensure valid ends-of-justice findings accompanied continuances, that the United States exhibited a “pattern of neglect” with regard to motions it filed, and that-it engaged in questionable discovery practices,' all of which- resulted in- a “strong inference of tactical delay.” But the Tenth Circuit concluded Judge Wad-doups abused his discretion on this factor by not considering Koerber’s responsibility for Speedy Trial Act delays. Last, on the third factor, the impact of reprosecution on the administration of the Speedy Trial Act and the administration of justice, the Tenth Circuit concluded Judge Waddoups did not abuse his discretion by “referring back to [his] analysis on the second factor” to determine that the United States engaged in a pattern of neglect and delay, and by concluding that given the resulting prejudice to Koerber, this factor weighed in favor of dismissal with prejudice.

The Tenth Circuit then “reverse[d] and remand[ed] to the district court for reconsideration in accordance with [its] opinion.” It instructed that the district court should first, properly consider the seriousness-of-the-offense factor (meaning “weigh that factor in favor of dismissing without prejudice”), and that it should “include Koerber’s role in the delay, if any, in its evaluation of the second factor.” The Tenth Circuit suggested the court “need not reevaluate (but should still include) the other facts and circumstances upon which it relied to dismiss Koerber’s case with prejudice.”

On remand, Judge Parrish reevaluated the factors and concluded: (1) as directed by the Tenth Circuit, the seriousness-of-the-offense prong weighed heavily in favor of dismissal without prejudice; (2) the circumstances-leading-to-dismissal prong was a draw after Judge Parrish found that in addition to the United States’ delay in Koerber I, Koerber was actually responsible for much of the delay; and (3) the reprosecution prong—which had previously turned on prejudice caused by the United States’ delay—was somewhat mitigated on remand given the new findings - that Koerber was responsible for much of the delay, and now weighed only “modestly” in favor of dismissal with prejudice. Thus, comparing the weight .of the three factors—(1) heavily in favor of dismissal without prejudice, (2) draw, and (3) modestly in favor of dismissal with prejudice—Judge Parrish concluded the Indictment would be dismissed without prejudice.

Koerber contends that Judge Parrish misinterpreted. the Tenth Circuit’s mandate by both doing too much and doing too little. He argues Judge Parrish (1) improperly reeyaluated the third impact-of-re-prosecution prong when the Tenth Circuit found no abuse of discretion, op that prong, and (2) failed. .to explicitly .include in its analysis, all of the, “other facts and circumstances”. Judge Waddoups originally relied on.

On the first point, Koerber argues the Tenth Circuit affirmed on the third im-paet-of-reprosecution . prong, but Judge Parrish reevaluated that prong anyway. The Tenth Circuit, however, merely concluded that “the, district court did not slight or ignore this factor,” and instructed, as discussed, that the court “need not reevaluate (but should still include) the other facts and circumstances upon which it relied to dismiss Koerber’s case with prejudice.” Judge Parrish did just that. She recognized the Tenth Circuit.affirmed on this factor and for that reason included Judge Waddoups’s analysis of the factor in her consideration: “This court has previously determined that this factor weighs in favor of dismissal with prejudice. That determination was upheld by the Tenth Circuit. Accordingly, this court’s earlier analysis is still applicable and will, not be repeated here.”,

She then recognized, however, that the court’s earlier analysis—and- the Tenth Circuit opinion affirming it—was based heavily on findings it-made in “its analysis of the second factor,” -including its determination that the Speedy Trial Act violation was a result of the United States’ intentional delay and that Koerber was prejudiced by it. The Tenth Circuit, however, instructed Judge Parrish on remand to “include Koerber’s role in the delay, if any, in its evaluation of the second factor.” Because Judge Parrish concluded in the second factor that Koerber contributed significantly to the delay, and because Judge Waddoups’s consideration of the third factor had been premised on his determination that the United States was solely responsible for delay (a determination, as discussed, that was reversed), it was entirely proper for Judge Parrish to reevaluate that factor in light of her new findings that in fact Koerber contributed to delay as well. Indeed, it would arguably have been error not to consider the effect of that change. Regardless, the Tenth Circuit did not cabin Judge Parrish’s discretion in this regard, and “unless the district court’s discretion is specifically cabined, it may ... exercise discretion in determining the appropriate scope” of remand. Judge Parrish’s decision to reevaluate the third impact-of-reprosecution prong was not an abuse of discretion.

Koerber’s other argument is that'Judge Parrish did not explicitly recite all the findings Judge Waddoups made. He contends she did not detail the “specific government failures” justifying dismissal (and instead referred “only generally” to a “pattern of neglect”), she failed to reference “[t]he government’s tactical delay and discovery practices that amounted to more than a year of unjustified delay,” and she neglected to note the “[gjovernment’s illegitimate appeal” and its bad faith.

The Tenth Circuit did not mandate that Judge Parrish recite all of Judge Wad-doups’s prior findings; it stated she “need not reevaluate (but should still include) the other facts and circumstances upon which [Judge Waddoups] relied to dismiss Koer-ber’s case with prejudice.” This is exactly what Judge Parrish did. She first recognized that “the Tenth Circuit instructed this court on remand to Veigh [the first] factor in favor of dismissing without prejudice,’ ” and consequently did so. She then recognized with regard to the second factor that:

[t]his court already concluded that the United States exhibited a “pattern of neglect” and that its failure “contributed to the speedy trial delay.” Similarly, the district court concluded that deficiencies in orders prepared by the United States and approved by the court were “symptomatic of the Government’s pattern of neglect and dilatory conduct in managing the Speedy Trial Act clock in this case.” The district court concluded that the Government’s conduct raised a “strong inference of tactical delay in its prosecution of this case.

Then, as instructed, Judge Parrish weighed these findings against her own findings that Koerber also caused much of the delay, and concluded the second factor was therefore a draw. Last, as to the third factor, she recognized that “[t]his court has previously determined that this factor weighs in favor of dismissal with prejudice. That determination was upheld by the Tenth Circuit. Accordingly, the court’s earlier analysis is still applicable and will not be repeated here.” She then included her new finding that Koerber contributed some to delay, and determined, after considering Judge Waddoups’s findings related to this factor, that the new delay findings “somewhat mitigated” the previous determination that the ' third factor weighed strongly in favor of dismissal with prejudice. This analysis in no way exceeded the Tenth Circuit’s mandate.

B. The Post-Remand, Pre-Indictment Speedy Trial Violation

Koerber next argues the Speedy Trial Act was violated after the Tenth Circuit remanded the case but before the current Indictment was returned. This argument relates back to Koerber’s Motion to Dismiss as Time Barred, which the court denied above in Section I. In that Motion, Koerber argued the dismissal of the 2011 Superseding Indictment became final on appeal, and on that basis the 60-day period in the 18 U.S.C. § 3288 tolling statute applied (which would render the current Indictment untimely). Here, Koer-ber. argues alternatively that if the dismissal did not become final on appeal, then a new 70-day Speedy Trial Act clock started on the date the mandate was returned, and was thereafter violated.

This ignores that at that time there was no pending Indictment on which the clock could run. Indeed, Koerber did not press for a speedy trial during that time, and even if he had done so, it was not yet clear at that point whether the United States would be allowed to continue its prosecution, the with-prejudice determination having not yet been made. And even if the clock had restarted and run out, Koerber’s remedy would be dismissal—which is what happened anyway. The court will not dismiss based on a post-remand, pre-indictment speedy trial violation. ■

C. The Post-Indictment Speedy Trial Violation

Koerber next argues that the speedy trial clock has run on the current Indictment. The Indictment was returned January 18, 2017, and Koerber made his initial appearance on February 16 (the parties dispute which of these two events started the speedy trial clock). Koerber filed a Motion to Compel on March 14 (the parties dispute whether this Motion tolled the Speedy Trial clock). Judge Benson held a status conference that same day, the United States filed a Motion to Continue the trial two days later, and Judge Warner granted the Motion the. following month, on April 12 (the parties dispute on which of these dates the trial was actually continued). In arguing the Speedy Trial clock has run, Koerber contends: (1) the clock began when the Indictment was returned, not, as is typically the case, when he made 'his first appearance; (2) his Motion to Compel did not toll the speedy trial clock because the court ultimately denied the Motion without prejudice; and (3) Judge Benson continued the'trial at the March hearing (albeit without the proper ends-of-justice findings), and Judge' Warner’s subsequent Order continuing the trial and his attendant ends-of-justice findings were merely improper retroactive'findings that do not suffice to toll the clock.

The court is not persuaded that Koerber is, correct that the clock begins when the Indictment was returned, rather than when he first appeared, but it declines to decide the issue at this time because the court’s resolution of the other two issues renders the question moot. That is, because the court concludes Koerber is mistaken about his other two points, even if the clock did start when the Indictment was returned, the clock has not run out. The court will address these other two arguments in turn.

Koerber’s first argument is that his Motion to Compel—which the United States relies on to toll the speedy trial clock from March 14 through April 14—did not actually toll any time because the court denied the motion without prejudice and without reaching the merits. In his opening brief, Koerber cited no case law in support of this argument. Indeed, he did not even explicitly argue that the Motion to Compel did not toll the Speedy Trial Clock, but merely noted that the court’s denial “compounded the Speedy Trial Act problem.” Perhaps for this reason, the United States never responded to this argument in its opposition. Only in his reply did Koerber explicitly make the argument that “the motion to compel discovery did not toll the STA clock,” at that point spending nearly four pages arguing the issue.

Nonetheless, the court has reviewed the case law Koerber cited in his reply, and concludes .his position is unsupported. None of the case law Koerber cites stands for the proposition that motions that are ultimately denied without prejudice and without reaching the merits do not toll the Speedy Trial Clock. This case is not, as Koerber contends, like United States v. Mentz, where the Sixth Circuit determined that a Rule 16 Motion for Discovery did not toll the speedy trial clock because the Motion was irrelevant (as discovery proceeded automatically, without need for a motion), and the court never took the motion under advisement, nor did it ever rule on the motion.

Koerber’s Motion asked .the court to compel production of discovery the United States previously, refused to produce (unlike MenU, where the defendant “did not need to file a formal motion seeking discovery from the government”). The Motion was fully briefed, and the court took it under advisement and ultimately ruled on it (again, unlike Mentz ). And the reason the ruling was a denial without prejudice to Koerber refiling his Motion was that earlier that day, Koerber had, for the first time since the new Indictment was returned, accepted appointed counsel. For months Koerber asserted his right to proceed pro se, notwithstanding invitations from the court to appoint counsel. When he changed course and decided to accept appointment of an attorney, the court provided him an opportunity to refile his pro se motions (or file updated motions) “if [he] wish[ed] to do so after consulting with recently appointed counsel.” Koerber has cited no authority for the proposition that such a denial retroactively renders a motion unable to toll the speedy trial clock while it is,pending, nor has the court found any.

Koerber’s next argument is related to the continuance of the trial, and whether that continuance properly tolled the speedy trial clock. Both parties agree the trial was continued from April 24 to August 7. Koerber contends Judge Benson continued the trial during his March 14 status conference, and not until Judge Warner’s April 14 Order were proper tolling-related ends-of-justice findings made, rendering the tolling retroactive and therefore invalid. The United States, by -contrast, contends that Judge Benson did not continue the trial, and that the continuance occurred later in Judge Warner’s April 14 Order concurrently with the ends-of-justice findings.

Any doubt on this point can be put to rest by reviewing the transcript of Judge Benson’s hearing, which makes clear that he did not continue the trial. In relevant part, he stated:

• “I think for right now we better leave the trial date .,. [at] April 24th.” '

• “I’m going to keep the trial date where it is.”

• “I don’t think we have accomplished much today. I have le