Government actions in obtaining evidence provided by indicted St. George businessman Jeremy Johnson under promises of immunity threaten the integrity of the judicial system, Johnson's attorneys argue in a motion seeking dismissal of the 86 charges he's facing in an upcoming trial.
The U.S. attorney's office for Utah and FBI agents violated Johnson's constitutional rights when they obtained evidence Johnson had provided under an immunity agreement to the two county prosecutors who are pursuing criminal charges against former Utah Attorneys General Mark Shurtleff and John Swallow, according to the motion.
Federal prosecutors in Utah had been recused from the Shurtleff and Swallow cases because of a conflict of interest and should not have accessed investigative materials from them, according to the motion by Johnson attorneys Rebecca Skordas and Daniel B. Larson. In addition, the evidence included emails and documents from Johnson's attorneys that are almost always considered private and that the prosecution team should not have accessed, the two attorneys wrote.
"These failures are unjustifiable and erode faith in the legal process," the motion says, adding that "these actions threaten judicial integrity."
The U.S. attorney's office for Utah declined to comment. All parties in the Johnson case have been put under a gag order.
The motion was one of several filed late Friday, the court-imposed deadline for asserting arguments and evidence that could result in dismissal of the case or certain charges. Johnson and three other high-level employees of his defunct online marketing company called I Works have pleaded not guilty to charges that are related to allegations of bank fraud. A trial is set to begin in U.S. District Court for Utah on Feb. 1.
In a separate motion, defense attorney Marcus Mumford said that about two years of emails from I Works' computers were missing from evidence provided to the defense.
Emails copied from the computer hard-drives may have been scrubbed from evidence provided to defendants, wrote Mumford, who represents defendant Scott Leavitt. In addition, files from I Works' attorney Philip Gubler also are missing, including important contracts, he said.
Mumford seeks an order compelling the government to turn over the evidence he alleges is missing.
The U.S. attorney's office for Utah confirmed in January of 2013 that it was investigating after Johnson went public with accusations Swallow had participated in a deal to try to help stall federal regulators' investigation into I Works. But local prosecutors were recused from the Swallow and Shurtleff cases in May of that year for undisclosed reasons, though the Johnson motion filed Friday said it came about because the then lead prosecutor, Brent Ward, had a conflict of interest.
After that recusal and the subsequent exit of the U.S. Justice Department, Davis County Attorney Troy Rawlings and Salt Lake District Attorney Sim Gill stepped in to take over the Shurtleff and Swallow investigations. They have been aided by a team of FBI agents and a state investigator.
Johnson was promised immunity for cooperation with the county prosecutions, according to the motion. And a recording of a Feb. 3, 2014, meeting shows that FBI Special Agents Jon Isakson and Sanitha Ulsh assured Johnson's attorney at the time, Ron Yengich, that none of the information Johnson provided would be given to the federal team prosecuting him. State investigator Scott Nesbitt even texted Johnson to assure him, "We will keep it within our prosecution team."
Still, in February of this year, Assistant U.S. Attorney Karin Fojtik wrote the local FBI office and asked for materials from the Shurtleff and Swallow investigations, citing prosecutors' obligation to turn over all available evidence to Johnson's co-defendants. The FBI agreed to turn over the materials without consulting Rawlings, Gill or Johnson's attorneys.
Rawlings, who is prosecuting a state case against Shurtleff, said his efforts to obtain evidence from the federal prosecutors in Utah have been referred to the Colorado U.S. attorney's office because of the recusal.
Yet, Rawlings said in an affidavit filed with the Johnson motion, when federal prosecutors in Utah obtained the evidence from his investigation, "it did not go to Colorado" for vetting or filtering for any attorney-client materials.
A member of the Johnson prosecution team, FBI Special Agent Jason Henrikson, reviewed the evidence provided to him by Nesbitt, which included emails and other communication between Johnson and his attorneys, the motion says.
It asks for a hearing to flush out facts related to the motion but asserts that "the government's intrusion into Mr. Johnson's attorney-client relationship constituted a per se violation" of his constitutional rights.
Johnson's defense team also is expected to file a separate motion to dismiss the case over the government's use of a secret warrant to intercept thousands of emails between Johnson and attorneys that were contained in Johnson's email accounts.
Another Mumford motion seeks to dismiss specific counts of the indictment, claiming it lacks adequate facts or a basis in law.
It argues that as an agent for Wells Fargo, a company called Cardflex and its brokers knew that Johnson was behind a series of so-called shell companies that the indictment alleges were formed to try to hide their relationship to I Works. Because Cardflex was Wells Fargo's agent, the government can't argue the bank didn't know of the connection to Johnson, the motion argues.
A fourth motion filed Friday, seeks to dismiss charges against defendant Ryan Riddle. Attorneys Steven Killpack and David Finlayson say the charges in question don't meet requirements of federal bank fraud laws.
tharvey@sltrib.com
