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A federal prosecution team knowingly gathered private emails between indicted St. George businessman Jeremy Johnson and his attorneys and then failed to adequately put in place procedures that would protect Johnson's constitutional rights to effective legal counsel, one of his attorneys said in a motion filed Monday.
In a separate court filing in a series of back-and-forth motions and responses, federal prosecutors are denying other allegations that years of emails from Johnson's I Works are missing from evidence and that prosecutors and FBI agents are guilty of misconduct.
In the latest motion filed Monday evening, Johnson attorney Daniel Larsen sought dismissal of the 86 counts against Johnson related to his operation of his company. Larsen argued that a 2013 warrant was overly broad in seizing all Johnson's emails during a period of time after his indictment when the government was looking for evidence of witness tampering — a charge that was never brought.
Because Johnson had been represented by attorneys well before the warrant was issued, the federal prosecution team knew it would be intercepting private attorney-client communication when it obtained a search warrant for all of Johnson's emails from two Google accounts, the motion says.
"The government knew it would encounter privileged material but did not inform the magistrate, and did not implement procedures to avoid violating Mr. Johnson's rights" to effective legal counsel, Larsen wrote.
Prosecutors are under a gag order prohibiting most comment on the case, but they have a period of time to respond to the new motion.
In a recent response filed in federal court to another motion, prosecutors said attorneys for Johnson and three other defendants accused of bank fraud and other charges are making bold accusations without evidence.
Lawyers for Johnson had accused the U.S. attorney's office for Utah and FBI agents of violating their client's constitutional rights when they obtained evidence that Johnson had provided under an immunity agreement to two county prosecutors, who are pursuing criminal charges in state court against former Utah Attorneys General Mark Shurtleff and John Swallow — cases in which Johnson is a key witness.
The U.S. attorney's office for Utah had been recused from the previous federal investigation of Shurtleff and Swallow and should not have been able to obtain evidence from the state prosecutions, according to a recent motion from Johnson's lawyers. They also should not have had access to private emails between Johnson and his attorneys, the motion argued.
In rebuttal, federal prosecutors said the evidence from the state investigation was obtained only so they could meet requirements that they turn over all available evidence that might be of use to the defense. They also said they had not seen or made use of the evidence and that Johnson's rights against self-incrimination were not violated because the evidence came from his voluntary meetings with the state prosecution team pursuing Shurtleff and Swallow.
Additionally, Johnson waived any privacy rights to communications with his attorneys when he voluntarily turned over emails to the state investigators, the rebuttal says.
"How easy it apparently is in the current climate (particularly in this case) for defense attorneys and defendants to accuse the United States of outrageous misconduct requiring dismissal of an indictment regardless of the actual facts," Assistant U.S. Attorney Jason Burt wrote. "Editorials in newspapers and bare assertions do not the truth make."
In addition, government attorneys said that Johnson had no immunity agreement with the two county prosecutors with whom he had cooperated by the time they obtained evidence from him. But even if there was such a deal, the feds said they were not party to an such accord and not bound by it.
Davis County Attorney Troy Rawlings, who is prosecuting the corruption case against Shurtleff, declined to discuss details, but suggested federal officials were aware of the immunity agreement before the U.S. attorney's office obtained the evidence.
"The assertions of the United States attorney's office are not complete and do not fully recount the history of the involvement of the state of Utah with Jeremy Johnson or the federal government's interactions (via the FBI and U.S. attorney's office) with both Johnson and the state of Utah," Rawlings wrote in an email.
Federal prosecutors also sought to rebut assertions that thousands of emails from Johnson's I Works company from the time period crucial to the government's case were missing from a database provided to the defendants.
Marcus Mumford, an attorney for Johnson's co-defendant Scott Leavitt, had sought an order compelling prosecutors to turn over the emails that he said were missing. Mumford claimed the emails may have been scrubbed from the copy of an I Works computer hard drive before it was given to defense attorneys.
But federal prosecutors said that the defendants had access to a "significant numbers of emails during the periods alleged to be missing," though they noted the emails came from a database that contained only selected communications from specific time periods.
"It must be emphasized that defendants have every email and document the government has obtained," Assistant U.S. Attorney Robert Lunnen wrote in the response.
But he also noted that an FBI computer forensic expert, Randy Kim, had made a new image of the server in question and found "numerous instant messages and other data" not previously provided to the defendants.
Also Monday, U.S. District Judge David Nuffer issued a ruling that:
• Squelched a motion to dismiss charges against Leavitt and two other co-defendants, ruling that an agreement with Johnson that they not be prosecuted was only in force if Johnson had pleaded guilty at a January 2013 hearing where he had been expected to accept a plea agreement but where the two sides ultimately could not reach a deal.
• Denied a motion by attorneys for Leavitt and co-defendant Bryce Payne to dismiss the cases against them because they were singled out for prosecution among a number of people who could have been charged. Nuffer's ruling said they presented no evidence of selective prosecution.