Judge won’t dismiss charges against two in Jeremy Johnson case

A federal judge has turned back a motion to disqualify prosecutors or dismiss criminal charges against two of the defendants in the case involving St. George businessman Jeremy Johnson.

The order by U.S. District Judge David Nuffer dismissed allegations that prosecutors had intruded into private attorney-client communications involving several emails the government had proposed as evidence in the case set to go to trial in February.

Still pending, however, is a motion by attorneys for Johnson that seeks dismissal of the 86 bank-fraud related charges against him over the government's use of a search warrant that gathered thousands of emails between Johnson and his attorneys.

Nuffer's order, issued Wednesday, related to emails between defendants Bryce Payne and Scott Leavitt — top level employees of Johnson's online marketing company I Works — and attorneys Phillip Gubler and Jeff Ifrah or his law firm.

In both cases, Nuffer ruled that Payne and Leavitt had failed to timely assert that the emails were privileged communications between attorneys and clients and had, therefore, waived any right to keep them out of prosecutors' hands.

Federal prosecutors also have offered a response to the allegations in the other email issue in which a May 17, 2013, search warrant swept up thousands of emails as part of a witness tampering investigation.

Johnson attorney Daniel Larsen argued in an earlier motion seeking dismissal of the case that the search warrant was overly broad in seizing all Johnson's emails during a period of time after his indictment when the government knew he was represented by attorneys whose communications likely would be seized.

Then prosecutors failed to put into place procedures that would have kept members of the prosecution team from having access to those communications, Larsen argued.

But in reply, Assistant U.S. Attorney Robert Lunnen said the search warrant sought only emails between Johnson or named targets of the investigation and witnesses.

After receiving all of Johnson's emails, prosecutors had the materials filtered for attorney-client communication, Lunnen wrote.

"Employing this process, there was virtually no possibility that the government would be exposed to Johnson's attorney- client communications," he wrote.

While the search warrant at the heart of the dispute has been unsealed, an accompanying affidavit remains sealed from public view.

Johnson and the other three defendants are charged with allegedly setting up a number of shell companies to process consumer credit and debit cards when other accounts were closed by credit card issuers because of a high volume of chargebacks. The defendants have said they were following instructions from agents of the banks in order to root out fraud caused by affiliate companies and that banks made money on the deals and suffered no losses.

tharvey@sltrib.com