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Convicted businessman Jeremy Johnson has asked a federal judge to grant him a new trial, asserting in court papers that prosecutorial misconduct, faulty jury instructions and other errors made during his six-week trial merit a new proceeding.
Johnson was convicted by a jury in March on eight counts of submitting false information to a bank. He was acquitted of 78 other charges, including counts of bank fraud, wire fraud, conspiracy and money laundering, which stemmed from allegations about the operations of his St. George online marketing company, I Works.
He faces up to 30 years in prison on each count when sentenced in June.
Court papers filed late Friday in Salt Lake City's federal court ask a judge to vacate Johnson's conviction and hold an evidence hearing to explore claims of misconduct and error laid out in the 30-page document.
In the alternative, Johnson's attorneys want Judge David Nuffer to overturn the verdict by entering a "judgment of acquittal notwithstanding the verdict."
A review of the court docket Saturday showed that government attorneys had not yet responded to the petitions and it was not clear from the record when Nuffer would rule on the motions.
A memo by Johnson's new attorneys say he agreed to rest his case without testifying on his own behalf or introducing new evidence because of a deal made with prosecutors, who promised to keep certain terms — chargebacks, domain names and websites — out of their own closing arguments.
The deal, approved by the court, also included barring those terms from jury instructions, court papers say.
"The government did not comply," say Johnson's attorneys, Karra Porter and Mary Corporon.
Instead, prosecutors used the terms frequently in final arguments and referenced evidence excluded during the trial, leaving Johnson unable to mount an adequate defense. For example, his attorneys say, Johnson was unable to introduce recorded telephone calls between himself and credit card processing companies that would have shown that I Works had not lied to banks about its operations.
Jury instructions also included the terms in more than two dozen paragraphs, violating Johnson's right to due process, court papers say.
Johnson was also prevented from calling an expert witness to testify about how I Works was advised to fill out applications for merchant accounts with banks and from introducing evidence to prove that some data on those applications were not considered "material" or important, and therefore not intentionally misleading or meant to influence bank officers.
The court barred the evidence and told jurors to disregard the issue of materiality, because it is not an element of the crimes charged.
"The instruction is entirely one-sided, placing undue emphasis on the government's theory of the case and essentially leading the jury away from the defense theory," Johnson's attorneys contend.
Additionally, the court papers say Johnson was deprived of his right to hire the attorneys he wanted because his assets were seized by the Federal Trade Commission as part of a parallel civil case. The funds — more than $12 million — have been in the hands of a federal receiver since January 2011 and a judge has, so far, refused to release any portion of it so that Johnson could mount his criminal defense.
Citing a March ruling from the U.S. Supreme Court, Johnson's attorneys now say such refusals are unconstitutional and violate his rights, particularly since none of the money is "traceable to the criminals offenses" the government alleged.
A lack of funds left Johnson to rely on the assistance of a court-appointed lawyer, Rebecca Skordas, who had a conflict in the case.
Skordas previously represented a key witness in the FTC's case, Justin Lund, who was also on the list of possible witness in the criminal case. U.S. Magistrate Paul Warner appointed Skordas to represent Johnson after Warner had ruled there was no conflict of interest with Lund, the judge said during a court session late last year.
"It is believed Mr. Johnson was unaware of the full scope of the conflict," his attorneys wrote, including that the witness was speaking with Skordas well before she was appointed to represent Mr. Johnson.
Lund also is believed to have provided false information to police about some allegedly "stolen" or "missing" computer servers, which Johnson believes contain evidence critical to his defense.
"In other words, to fully represent Mr. Johnson, (Skordas) would have to accuse Mr. Lund," court papers say.
The 30-page petition also cites other grounds for a new trial, including an insufficiency of evidence, jury instruction that failed to guarantee unanimity of the verdict and non-payment or slow payment of other court-appointed lawyers who have represented Johnson over the past five years.
Also on Friday, attorneys for Johnson co-defendant Ryan Riddle filed a similar motion seeking to vacate his conviction and secure a new trial.
Riddle, the former general manager of I Works, was convicted of six counts of making false statements to a bank.
@jenniferdobner