Stuart Johnson, Deseret News
FILE: Federal prosecutors say a U.S. District judge abused his discretion when he dismissed a $100 million real estate fraud case against a Utah businessman Rick Koerber.

SALT LAKE CITY — A federal appeals court Thursday sent a $100 million real estate fraud case against a Utah businessman back to the judge who dismissed the charges.

The 10th Circuit Court of Appeals found U.S. District Judge Clark Waddoups "abused" his discretion in two instances when he tossed the case against Claud R. "Rick" Koerber in 2014. Waddoups ruled that federal prosecutors violated the Speedy Trial Act and engaged in a pattern of widespread misconduct.

While the three-judge panel disagreed with most of the government's arguments on appeal, it found Waddoups failed to consider the seriousness of the charges and Koerber’s role, if any, in causing delays to the trial, according to the decision.

Koerber's lawyer, Marcus Mumford, called it "just a technical ruling."

"The appellate court did not agree with the district court’s conclusion, just the way Judge Waddoups reached it," he said.

Mumford said he is confident Waddoups would reach the same decision after he considers those factors.

Koerber was accused of operating one of Utah's largest Ponzi schemes. Prosecutors charged him with mail fraud, wire fraud, fraud in the offer and sale of securities, sale of unregistered securities, money laundering and tax evasion in 2009. They claim he owed investors more than $30 million.

Waddoups dismissed the charge with prejudice, meaning prosecutors could not file them against Koerber again.

Government attorneys argued in the appeal that Koerber was responsible for the delays and never wanted to go to trial. The say they did everything they could to move the case along. They also argued that the judge did not take into account the seriousness of the charges against him.

Mumford said the 10th Circuit did not upend Waddoups’ core ruling. The appeals court agreed that the case has, as Waddoups found, a "sordid history" and that prosecutors acted with "baffling incompetence” and a "pattern of neglect and dilatory conduct."

But, he said, the court pointed out that maybe Waddoups "wandered over the line" in how he balanced the factors leading to the dismissal. "So it sent the case back down to make sure," Mumford said.

Koerber maintains the government never should have indicted him. He has said he defrauded no one but ran a profitable business and was singled out by bureaucrats angered by his radio show, "The Free Capitalist."

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