Professional Documents
Culture Documents
Wheeler (3439)
Samuel Alba (0031)
Richard A. Van Wagoner (4690)
Nathanael J. Mitchell (14727)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Fl., P.O. Box 45000
Salt Lake City, Utah 84145
Telephone: (801) 521-9000
Fax: (801) 363-0400
Email: mdw@scmlaw.com
sa@scmlaw.com
rav@scmlaw.com
njm@scmlaw.com
Attorneys for Defendant Mark L. Shurtleff
STATE OF UTAH,
Plaintiff,
v.
Case No. 141907720
MARK L. SHURTLEFF,
Judge Elizabeth A. Hruby-Mills
Defendant.
Throughout Mr. Shurtleffs Motion to Dismiss for Brady/Giglio and Speedy Trial
Violations (Brady Motion) Mr. Shurtleff references an unfiled Motion to Suppress
Unlawfully Obtained Warrants and Request for Franks Hearing (Motion to Suppress).
In his Motion to Suppress, Mr. Shurtleff will contend that Agent Nesbitt and members of
the Task Force submitted a series of affidavits containing material omissions, misleading
statements, and outright mistruths to the magistrate in order to secure a series of warrants to
invade the private residence and personal life of Mr. Shurtleff. Agent Nesbitts pattern of
unlawful conduct and abuse of the judicial process not only offended principles of truth and
fairness, but also resulted in a violation of Mr. Shurtleffs constitutional rights under the Fourth
Amendment of the United States Constitution, as articulated in Franks v. Delaware.1
This exhibit contains excerpts from the background section of the unfiled Motion to
Suppress, as well as illustrations of areas in which a search warrant affidavit filed by members of
the Task Force suffered from constitutional deficiencies. As discussed in the Brady Motion, Mr.
Shurtleff seeks certain exculpatory and impeachment material in order to prepare for the
evidentiary hearing and further support his claim that the State violated the Fourth Amendment
through a series of unlawful warrant applications.
In Franks v. Delaware, the United States Supreme Court recognized that the ex parte nature of the warrant
application process could lead to prosecutorial abuse. Franks v. Delaware, 438 U.S. 154, 169-170 (1978). To
protect against this risk, the Court held than individuals are entitled to use an evidentiary hearing to challenge the
validity of a search warrant, if there is a preliminary showing that (i) an affiant in an affidavit supporting a search
warrant made a false statement intentionally, knowingly, or with reckless disregard for the truth, and (ii) the
affidavit is insufficient to support a finding of probable cause after the misstatement is set aside. State v. Nielsen,
727 P.2d 188, 191 (Utah 1986). If a court concludes the government procured a warrant through intentional or
reckless false statements or material omissions, the search warrant must be voided and the fruits of the search
excluded to the same extent as if probable cause was lacking on the face of the warrant. Franks, 438 U.S. at 155.
GENERAL BACKGROUND
A.
1.
After graduating from Brigham Young University and the University of Utah
College of Law, Mr. Shurtleff served four years in the United States Navy Judge Advocate
Generals Corps. Mr. Shurtleff left the Judge Advocate Generals Corps in 1990.
2.
Over the next twenty years, Mr. Shurtleff served as an Assistant Utah Attorney
General, a Deputy County Attorney for Salt Lake County, and Salt Lake County Commissioner.
3.
In 2000, Mr. Shurtleff was elected Attorney General for the State of Utah.
4.
In 2009, Mr. Shurtleff briefly considered running for the United States Senate.
Mr. Shurtleff, however, ended his Senate campaign later that year in order to devote additional
time to his daughter, who was suffering from personal issues that required family support.
5.
At the conclusion of his third term and after twelve years of service, Mr. Shurtleff
6.
7.
Committee created by the Utah House of Representatives retained counsel to investigate public
allegations that Mr. Swallow had engaged in potential illegal, improper, or unethical conduct.2
See Utah House of Representatives, Report of the Special Investigative Committee 19-21 (March 11, 2014).
8.
there was probable cause to believe that Mr. Swallow violated Utahs election law in five
respects during the 2012 Attorney General campaign.3
9.
The Special Committee concluded (1) Mr. Swallow had, in effect, created a pay-
to-play system, in which Mr. Swallow provided access to his office in exchange for campaign
support or contributions;4 and (2) Mr. Swallow had improperly inserted himself into a private
lawsuit against Bank of America in order to protect the interests of a campaign contributor.5
10.
After months of investigation and public controversy, Mr. Swallow resigned from
11.
The Utah State Bureau of Investigation (SBI) and the Federal Bureau of
Investigation (FBI) began working together as part of a joint state-federal task force (Task
Force). Members of the Task Force included Agent Scott Nesbitt from the Utah Department of
Public Safety and FBI Special Agents Jon Isakson and Michelle Pickens.
12.
Between December 11, 2013 and June 2, 2014, members of the Task Force
submitted a series of warrant applications to the Honorable Vernice S. Trease in the Third
District Court, State of Utah. Acting in the capacity of a magistrate and relying on the Task
Forces representations, Judge Trease issued several warrants directly affecting Mr. Shurtleff.
Id. at 29.
Id. at 6, 38.
Id. at 103.
a.
On or about December 11, 2013, Agent Nesbitt sought and obtained Warrant
214.
District Attorney Jeff Hall reviewed and approved Agent Nesbitts affidavit
and the proposed warrant.
b.
On or about December 11, 2013, Agent Nesbitt sought and obtained Warrant
216, which permitted seizure of a broad range of documents from Google, Inc.
and Google Payments Corporation, including communications sent and
received from Mr. Shurtleffs personal email account for a four-year period.
Deputy Salt Lake County District Attorney Nicholas DAlesandro reviewed
and approved Agent Nesbitts affidavit and the proposed warrant application.
c.
On or about June 4, 2014, Agent Nesbitt sought and obtained Warrant 158,
which permitted a search of Mr. Shurtleffs private residence. Deputy Salt
Lake County District Attorney Fred Burmester reviewed and approved Agent
Nesbitts application and the proposed warrant.
d.
Agent Nesbitt also applied for and obtained a series of warrants directed at
obtaining documents and evidence from third parties.
e.
Members of the Salt Lake District Attorneys Office reviewed and approved each
As discussed below, Agent Nesbitt and members of the Task Force used false and
THE TASK FORCE MISLED THE COURT ABOUT MR. SHURTLEFFS ROLE
IN MARC S. JENSONS CRIMINAL PROSECUTION IN 2005-2008.
16.
of Mr. Shurtleffs management of the Attorney Generals Office. The Task Forces secondguessing of Mr. Shurtleffs management centered on his exercise of oversight in a controversial,
complex, and well-publicized criminal casethe prosecution of Marc S. Jenson.
17.
On August 10, 2005, the Attorney Generals Office charged Mr. Jenson with
Mr. Jenson retained Greg Skordas, a prominent defense attorney who had run
members of the community attempted to use political influence and personal pressure in the
hopes of securing a dismissal of the charges against Mr. Jenson.
20.
include the following: Brent Hatch, the son of U.S. Senator Orrin Hatch; Mark James, a
6
prominent Salt Lake City attorney; several leaders of the Church of Jesus Christ of Latter Day
Saints; New York investors in Mr. Jensons investment projects; Steve Hassler, a former
fundraiser; several members of Mr. Jensons family; and Mr. Jenson himself.
21.
At one point, Mr. Jensons Director of Security for the Mount Holly development
project, Paul Nelson, who also invested in Mr. Jensons business, contacted victims in the
pending criminal case for the purpose of interfering with the investigation and prosecution.
22.
Mr. Nelson also sent several emails to Mr. Shurtleff, insisting on Mr. Jensons
In response, Mr. Shurtleff referred Mr. Nelson to one of the prosecutors assigned
Despite pressure from many prominent members of the community, Mr. Shurtleff
25.
Efforts to improperly influence the prosecution of Mr. Jenson reached new lows
in 2007, approximately two years after Mr. Shurtleffs office filed the charges.
26.
In September 2007, Mr. Shurtleff was hospitalized for injuries that he received in
a serious motorcycle accident. Unannounced and uninvited, Mr. Nelson visited Mr. Shurtleffs
hospital room. Finding Mr. Shurtleff heavily sedated, Mr. Nelson informed Mr. Shurtleff that
Mr. Jenson and his friends could raise hundreds of thousands of campaign dollars if Mr.
Shurtleff would dismiss the charges against Mr. Jenson.
27.
At one point in time, Mr. Nelson threatened Mr. Shurtleffs political future if he
investors in New York would raise money against Mr. Shurtleff in the 2008 election, and that
Mr. Skordas and Scott Reed, a prosecutor assigned to the case, were conspiring to mount a
campaign against Mr. Shurtleff if the charges were not dismissed.
28.
Shortly after Mr. Nelsons visit, Mr. Shurtleff reported Mr. Nelsons attempt to
bribe and coerce Mr. Shurtleff to the FBI through his Chief of Investigation, Ken Wallentine.
29.
After Mr. Shurtleff reported Mr. Nelsons attempt to improperly influence him in
the hospital, the United States Attorneys Office for the District of Utah and the FBI opened a
formal criminal investigation of Mr. Nelson and Mr. Jenson that included potential federal
charges of Soliciting a Bribe, Interstate Communications, and Wire Fraud.
30.
communications between Mr. Shurtleff and Mr. Nelson be recorded. The FBI also informed Mr.
Shurtleff that he was a victim and that federal authorities should conduct the investigation.
31.
that resulted in two recorded meetings and the collection of more than 140 text messages.
32.
As part of the sting operation, Mr. Shurtleff provided the FBI with text messages
between Mr. Shurtleff and Mr. Nelson, Mr. Jenson, and Mr. Skordas. Mr. Shurtleff also sent
several text messages to Mr. Nelson, Mr. Jenson, and Mr. Skordas with the knowledge and, at
times, direction of the FBI.
33.
As part of the sting operation, Mr. Shurtleff worked with Special Agent Michelle
b.
c.
Mr. Shurtleff invited Mr. Nelson to his parents home, where he was
recuperating, and asked him to repeat the offer.6
34.
With Mr. Shurtleffs participation and assistance, the FBI installed a camera in a
clock located in the living room. When Mr. Nelson visited Mr. Shurtleff, SA Pickens and other
FBI personnel waited for the recording in another room in the home.
congratulated and thanked Mr. Shurtleff for his role in the sting operation.
35.
Approximately one week later, Mr. Jenson and Mr. Nelson appeared uninvited in
Mr. Shurtleffs hospital room. Mr. Shurtleff again contacted SA Pickens. The FBI provided Mr.
Shurtleff with a digital recording device and asked him to record Mr. Nelson.
36.
Using the device, Mr. Shurtleff obtained a second recording of Mr. Nelsons
attempts to improperly influence Mr. Jensons prosecution. To assist in the federal investigation,
Mr. Shurtleff gave the recording to the FBI.
37.
In summary, Mr. Shurtleff cooperated fully with the FBIs efforts to investigate
possible bribery of an elected official by Mr. Jenson and Mr. Nelson. Far from being complicit
in Mr. Jensons scheme or surreptitiously expressing a willingness to accept money or avoid
threats made against him in exchange for dismissal of criminal charges--bribery, Mr. Shurtleff
actively informed authorities of efforts to improperly influence a pending criminal case and then
played a critical role as a confidential informant in a subsequent investigation.
6
To avoid entrapment, SA Pickens coached Mr. Shurtleff to simply repeat on camera that he could not remember
exactly what Mr. Nelson had said to him while in the hospital.
38.
Months later, Mr. Shurtleff reported the outcome of the States prosecution of Mr.
Jenson to SA Pickens.
39.
Throughout the sting operation and subsequent investigation of Mr. Jenson and
Mr. Nelson, Mr. Shurtleff refused to dismiss Mr. Jensons criminal case.
B.
Mr. Shurtleff did not improperly influence plea negotiations in Mr. Jensons
criminal case. Instead, Mr. Shurtleff insisted that prosecutors reach a fair
resolution that adequately protected victims of Mr. Jensons crimes.
40.
As indicated above, the prosecution of Mr. Jenson was a high profile case. At
various points in time, Mr. Shurtleff, Chief Deputy Attorney General Kirk Torgensen, then
Assistant Attorney General Charlene Barlow,7 and Assistant Attorney General Scott Reed,
among others, participated in the evaluation of the case, its prosecution, and plea negotiations.
41.
that Mr. Shurtleff participated in Mr. Jensons prosecution at early stages of the criminal case, in
part because the case involved serious allegations and millions of dollars in restitution.
42.
Mr. Reed represented that Mr. Shurtleff was a hands-on Attorney General who
would involve himself in cases, even though some line prosecutors believed that he should not be
involved. Mr. Reed was able to identify specific cases in which Mr. Shurtleff stuck his nose.
43.
On April 30, 2007, Mr. Shurtleff sent an email to other prosecutors in which he
informed them he had bad feelings about Mr. Nelson, and he was interested in learning the
details of his intimidation of one of our witnesses.
In October 2010, Ms. Barlow became the Honorable Charlene Barlow of the Third District Court for the State of
Utah. Because her participation in the relevant events predated her appointment to the bench, Ms. Barlow is referred
to in a private capacity throughout this exhibit.
10
44.
On August 16, 2007, after receiving significant pressure from Mr. Nelson and Mr.
Jenson, Mr. Shurtleff emailed Ms. Barlow, Mr. Reed, and Mr. Torgensen to inform them that a
personal friend was offered money to sway the criminal case. Mr. Shurtleff wrote: Shouldnt it
be a crime to offer people money to try to get a prosecutor to dismiss a case?
45.
On August 25, 2007, Mr. Shurtleff circulated a draft email directed at Mr. Nelson
to the prosecuting team. In the draft email, Mr. Shurtleff wrote: As you know, I and several
prosecutors and investigators in our office, [sic] have reviewed all of the information and
allegations provided our office regarding Mr. Jensens [sic] alleged victims and we have
concluded that our prosecuorial [sic] standard has been met and continues in this case: a strong
likelihood of meeting our burden of proof beyond a reasonable doubt.
46.
As early as September 28, 2007, Ms. Barlow sent an internal email in which she
stated: Mr. Jenson can plead guilty to counts 2 and 6 as amended to third degree felonies; the
State would then dismiss the remaining counts. Mr. Jenson would be required to make complete
restitution of $4.1 million.
47.
Although Ms. Barlow informed other prosecutors that she was unwilling to offer a
plea in abeyance, FBI records indicate that Ms. Barlow did not think that it was unethical that
[Mr.] Shurtleff wanted a plea in abeyance instead of a trial. During an FBI interview, Ms.
Barlow indicated that the witnesses in Mr. Jensons criminal case were not the best possible
witnesses since they were shady, but that was common for victims in this type of case.
48.
On January 10, 2008, Mr. Reed sent Mr. Shurtleff a draft of a letter to Mr.
Jensons counsel. In the draft letter, Mr. Reed wrote: Mr. Jenson will pay restitution to Michael
Bodell and Morris Ebeling in an amount which shall be agreed upon and stated in the pleadings
11
submitted to the court prior to the entry and acceptance of the plea . . . . Frankly, I have strong
personal reservations regarding this proposal. It is the direction of the Attorney General that if
we can resolve this case under these terms and conditions, we will consider it an acceptable
outcome. Mr. Shurtleff approved the demand for full restitution.
49.
On February 12, 2008, Mr. Reed sent an email discussing restitution to Mr.
Jensons counsel. Mr. Reed proposed limiting Mr. Jensons total restitution to $2.5 million, in
part by removing $1.6 million in restitution to Michael Bodell, who was one of the victims of
Mr. Jensons fraudulent activities.
50.
On February 29, 2008, Mr. Shurtleff received an email from Timothy Lawson that
At the time of the proposal, Mr. Shurtleff continued to assist with and
participate in the federal bribery investigation of Mr. Jenson and Mr. Nelson.
b.
Within minutes of receiving the email, Mr. Shurtleff forwarded Mr. Lawsons
proposal to Mr. Reed and Mr. Torgensen.
c.
d.
Mr. Shurtleff responded: Thats what I told him. Apparently [Mr. Jenson]
has in-house or civil attorney working [Mr. Lawson]. I just sent it to you
guys so you would know whats going on.
12
e.
Mr. Shurtleffs response does not contain any instruction that prosecutors
adopt or incorporate the recommendations in Mr. Lawsons email.
51.
On February 29, 2008, Mr. Skordas requested that Mr. Jenson be allowed to
continue working on his Mount Holly project during the plea in abeyance period. Mr. Shurtleff
was not copied on the email.
52.
On March 3, 2008, Mr. Reed responded: Well give you Mt. Holly so we know
what to keep an eye on during the PIA period. The email does not contain any indication that
Mr. Reed consulted with Mr. Shurtleff about Mr. Jensons participation in future projects.
53.
On March 11, 2008, Mr. Shurtleff emailed Mr. Reed and Mr. Torgensen to
convey concerns about Michael Bodell, a victim in the case. Mr. Shurtleff wrote: [Mr.] Bodell
called again today and left a voice mail begging for a call from me explaining where we are and
what we are offering [Mr.] Jensen [sic], why we arent including restitution for him, and what his
rights are to attend and possibly object at the hearing. Can one of you please call him?
54.
In the midst of the federal investigation into Mr. Nelson and Mr. Jenson, Mr.
Shurtleff informed Mr. Torgensen and Mr. Reed about his concerns with obtaining a conviction.
55.
Prosecutors within the Attorney Generals Office did not agree on the strength of
the case against Mr. Jenson. On several occasions, Mr. Reed, in the presence of Ms. Barlow,
told Mr. Shurtleff that the case against Mr. Jenson was good, not great, but prosecutable. Ms.
Barlow, in contrast, insisted at the time that it was a strong case, despite potential issues arising
out of the credibility of witnesses.
56.
Based on his understanding of the case, Mr. Shurtleff had significant concerns
about the strength of the testimony of one of alleged victims, Mark Robbins.
13
57.
According to
interviews and recordings in the possession of the FBI, Mr. Robbins actively participated in Mr.
Jensons fraudulent scheme and defrauded investors out of millions.
58.
Mr. Reed eventually took a primary lead in negotiating a plea with Mr. Jensons
Mr. Reed presented a plea in abeyance offer to Mr. Skordas and Mr. Jenson that
did not require payment of restitution. Mr. Reed later confirmed that the exclusion of restitution
was not devised by Mr. Shurtleff, but rather the product of extensive negotiations and an effort to
take into account developments in a related civil case.
60.
After receiving notice of objections from victims, who also appeared at a hearing,
the Honorable Robin W. Reese rejected the plea in abeyance proposal submitted by Mr. Reed
and Mr. Skordas. Judge Reese instructed the parties to send future plea proposals to victims.
61.
Mr. Reed and Mr. Skordas negotiated a second plea in abeyance. Under the terms
of the plea offer, Mr. Jenson agreed to pay full restitution of $4,100,000. After agreeing to the
terms of plea, Mr. Jenson pled no contest on May 29, 2008.
62.
any plea should require that Mr. Jenson must pay full restitution to victims.
63.
Mr. Shurtleff believed that the structure of the plea deal increased the likelihood
that Mr. Jensons victims would receive restitution, because the only way that Mr. Jenson could
avoid a felony record and possible incarceration was to compensate the victims of his crimes.
Based on his experience, Mr. Shurtleff understood that the likelihood of victims receiving
compensation if the case went to a jury was remote, at best.
14
64.
Mr. Shurtleff was aware that several of the witnesses against Mr. Jenson would be
subject to impeachment, including Mr. Robbins, which undermined the likelihood of a successful
conviction in the absence of a plea agreement.
65.
Mr. Shurtleff fully disclosed the plea offer to SA Pickens of the FBI, along with
an explanation of why the Attorney Generals extended a plea in abeyance for three years that
required payment of full restitution to Mr. Jensens victims. The plea in abeyance was entered
while the bribery sting operation targeting Mr. Jenson and Mr. Nelson was still underway and
well before federal authorities made their charging decision against Mr. Jenson and Mr. Nelson
in connection with their scheme.
66.
Months after the plea, the Department of Justice declined to prosecute Mr. Jenson
and Mr. Nelson for attempted bribery and related crimes on November 19, 2008.
67.
According to federal authorities, the bribery scheme was not prosecutable because
Mr. Nelson had qualified his offers with language that Mr. Jenson was innocent and the funds
would be available to Mr. Shurtleff if he did the right thing. The federal authorities did not
specifically address Mr. Nelsons threats against Mr. Shurtleff.
68.
Unfortunately for the victims of his crimes, Mr. Jenson failed to pay any
restitution over the next three years. In 2011, Judge Reese sentenced Mr. Jenson to up to ten
years in state prison for failing to abide by the terms of the plea deal.
69.
Mr. Jenson later attempted to orchestrate a scheme from prison by directing his
former victims to tell the Utah Board of Pardons and Parole (Board) that restitution had or
would be paid.
Mr. Jenson even received a release, based on his (untruthful) claim that
15
restitution had been paid. Following a subsequent hearing, it was concluded that Jenson had not,
despite his claims to the contrary, in fact paid any of the $4.1 million in restitution.
C.
70.
Agent Nesbitt and the Salt Lake District Attorneys Office had access to a
b.
c.
d.
Agent Nesbitt and the Salt Lake District Attorneys Office had access to
the FBIs internal documents, which not only identified Mr. Shurtleff as a
victim and confidential informant in the federal investigation, but also
contained correspondence and recordings that undermined the Task
Forces narrative of Mr. Nelsons scheme and plea negotiations.
e.
16
71.
Agent Nesbitt and the Salt Lake District Attorneys Office omitted critical
information about Mr. Shurtleffs collaborative role in a federal investigation of Mr. Jenson and
Mr. Nelson. Examples of material omissions include the following:
a.
b.
c.
Mr. Shurtleff notified the FBI of the terms of the plea in abeyance.
d.
Ms. Barlow informed the FBI that the witnesses in Mr. Jensons
prosecution were not the best possible witnesses since they were shady,
but that was common for victims in this type of case.
e.
Agent Nesbitt also omitted that Mr. Nelson may have attempted to contact
Ms. Barlow to discuss prosecution of the case.
f.
g.
72.
Nesbitt knew that Mr. Shurtleff forwarded the email to Mr. Reed and Mr. Torgensen, after which
Mr. Shurtleff informed other prosecutors that Mr. Lawsons email was inappropriate.
17
73.
rumors, speculation, and unsubstantiated news articles. For example, Agent Nesbitt fails to
mention that Ms. Barlow conceded that she had never heard anything related to these rumors
[associated with an article] from [Mr.] Shurtleff.
74.
Agent Nesbitt and the Task Force failed to inform the magistrate that Mr.
Shurtleff was unwilling to dismiss charges against Mr. Jenson, but rather insisted that any plea
agreement include millions of dollars in restitution to victims of Mr. Jensons crimes.
75.
Agent Nesbitt and the Task Force misrepresented the facts and circumstances
surrounding negotiation of the plea deal by inaccurately attributing the terms and language of the
plea in abeyance to Mr. Shurtleff and failing to disclose that Mr. Shurtleff requested that full
restitution be paid to victims throughout the course of negotiations.
76.
Agent Nesbitt lacked any direct evidence that Mr. Jenson or related persons or
entities contributed to Mr. Shurtleffs campaign as a purported quid pro quo for anything, let
alone the dismissal of the criminal charges against Mr. Jenson.
77.
Agent Nesbitt failed to mention that Mr. Shurtleff denied possessing any
knowledge, at the time, that Mr. Jenson may have surreptitiously contributed to the cost of a trip
to Pelican Hills approximately one year after the plea arrangement.
78.
Agent Nesbitt fails to highlight that his primary witness, Mr. Jenson, was serving
a lengthy prison sentence at the time of his interview with members of the Task Force, or that
Mr. Jenson harbored ill-will and was substantially biased against Mr. Shurtleff.
18
III.
In affidavits in support of search warrants, Agents Nesbitt and the Salt Lake
District Attorneys Office distorted the relationship between Mr. Shurtleff and Mentoring of
America. Examples of intentionally or recklessly false statements include the following:
a.
b.
82.
Similarly, Agent Nesbitt and the Salt Lake District Attorneys Office, without any
evidence in support of such a connection, improperly suggested there was a link between
Mentoring of Americans lawful campaign contribution and Mr. Jensons criminal case.
a.
The affidavits use misleading phrases, such as not long after and
around this time, to falsely draw a temporal connection between
19
The affidavits fail to discuss the fact that the Mentoring of America
contribution occurred months after (i) Mr. Shurtleff had rejected multiple
requests to dismiss the criminal charges against Mr. Jenson and (ii) Mr.
Shurtleff had alerted federal authorities regarding improper efforts to
influence Mr. Jensons criminal case.
c.
When discussing the relationship between Tim Lawson and Mr. Shurtleff,
Agent Nesbitt failed to disclose that Mr. Shurtleff had described Mr.
Lawson as a name dropper and that he had asked Mr. Lawson not use
their relationship.
d.
The affidavit fails to disclose that Mr. Lawson was not employed by Mr.
Jenson until a later date, believed to be January 2009, months after the
Mentoring of Americas contribution.
83.
As discussed above, Agent Nesbitt and the Salt Lake District Attorneys Office
had access to information necessary to accurately represent the nature of the relationship
between Mentoring of America and Mr. Shurtleff.
a.
For example, Agent Nesbitt could have easily accessed campaign finance
records to verify the amount and timing of contributions.
b.
84.
Instead, Agent Nesbitt and the Salt Lake District Attorneys Office included in the
affidavits misleading statements about Mentoring of America for the express purpose of
furthering a false narrative about Mr. Shurtleffs tenure as Attorney General.
85.
the allegations surrounding Mentoring of America for the purpose of suggesting improper
conduct.
IV.
AGENT NESBITT AND THE TASK FORCE MISLED THE COURT ABOUT THE
MEETING AT MIMIS CAF.
A.
While serving as Attorney General, Mr. Shurtleff met with Darl McBride to
discuss his concerns about possible criminal activity.
86.
Darl McBride, a Utah-based entrepreneur once described as the most hated man
in high tech, emailed Mark Shurtleff and requested a meeting. After some delay caused by a
missed email, Mr. Shurtleff agreed to meet with Mr. McBride at his request.
87.
On May 8, 2009, Mr. McBride met with Mr. Shurtleff at Mimis Caf, a
Shurtleff rarely spoke during the course of the meeting. For most of the meeting, Mr. Shurtleff
asked questions to clarify Mr. McBrides narrative of events. In a few instances, Mr. Shurtleff
explained the background of Mr. Jensons prosecution and his relationship to Timothy Lawson.
89.
Mr. McBride spent the majority of the meeting explaining how he had lost
21
scheme. Mr. McBride claimed that he had taken out loans to pay Mr. Robbins, and that Mr.
Robbins promised to pay back Mr. McBride but failed to do so. Mr. McBride further claimed
that Mr. Robbins had perpetrated similar fraudulent schemes on other investors.
90.
In 2008, Mr. Robbins claimed that he was a victim of the fraudulent scheme at the
heart of Mr. Jensons criminal case. Prior to Mr. Jensons plea in abeyance, Ms. Barlow and
prosecutors intended to use Mr. Robbins as a key witness in Mr. Jensons trial.
91.
Mr. McBride informed Mr. Shurtleff that he had been contacted by Mr. Lawson.
According to Mr. McBride, Mr. Lawson offered to assist in recovering funds paid to Mr.
McBride for a 30% commission. After Mr. McBride questioned Mr. Lawsons connection to a
bad guy like Mr. Robbins, Mr. Lawson indicated that he carried three concealed weapons and
had Polynesian friends. Mr. McBride stated that Mr. Lawson told him that he needed to deal
with it my way or . . . theres going to be consequences to pay. Mr. Lawson also allegedly
threatened to turn over to prosecutors in Chicago and New York information about Mr.
McBrides criminal conduct during a prior civil dispute with IBM.
92.
Mr. McBride stated that he had received a text message from Mr. Lawson about
setting the twelfth richest man in the world against him after Mr. McBride filed a civil action
against Mr. Robbins.
93.
94.
In response to Mr. McBrides concerns, Mr. Shurtleff stated that Mr. Lawson was
a talker and a name dropper. Mr. Shurtleff indicated that he had concerns about how Mr.
Lawson had used Mr. Shurtleffs name. Mr. Shurtleff informed Mr. McBride that he had told
22
Mr. Lawson not to promise things on Mr. Shurtleffs behalf, especially because federal
authorities were pursuing other individuals for engaging in unlawful pay to play schemes.
95.
Mr. Shurtleff informed Mr. McBride that Mr. Jenson and Mr. Robbins had been
partners, and that Mr. Jenson was currently subject to a three-year plea in abeyance.
96.
Mr. Shurtleff indicated that Mr. Robbins was one of the witnesses in the criminal
credibility of Mr. Robbins undermined the strength of the criminal case against Mr. Jenson.
97.
of Mr. Shurtleff. Prior to the meeting, Mr. Shurtleff lacked specific information regarding Mr.
Lawsons communications with Mr. McBride or the purported threats.
98.
99.
Unlike Mr. Lawson, Mr. Shurtleff did not attempt to discourage Mr. McBrides
pursuit of Mr. Robbins. To the contrary, Mr. Shurtleff encouraged Mr. McBride to pursue a
variety of different forms of legal relief, including additional lawsuits against Mr. Robbins.
100.
Mr. Shurtleff lacked leverage to cause Mr. Jenson to pay Mr. McBride, because
the court ordered payment of restitution to a class of identified victims, which did not include
Mr. McBride or Mr. Robbins.
102.
Mr. McBride later brought a civil case in the Third Judicial District Court, State
of Utah, against Mr. Shurtleff for acts that allegedly occurred in 2012.
23
B.
Agent Nesbitt and the Task Force misrepresented the Mimis Caf meeting
and misled the court for the purpose of obtaining warrants.
103.
Agent Nesbitt and the Task Force misrepresented the conversation that occurred
at the Mimis Caf meeting in the hopes of obtaining warrants. Among other things, the
affidavits contain intentional or reckless material statements about the following subjects:
a.
The affidavits erroneously suggested Mr. Shurtleff initiated contact with Mr.
McBride, when in fact Mr. McBride initiated contact with Mr. Shurtleff.
b.
At one point, Mr. Shurtleff appears to have agreed with Mr. McBride that a
harsh response may be appropriate, a fact which Agent Nesbitt misconstrued
in his affidavits.
c.
confirmed that Mr. Robbins was in fact engaged in such criminal activity.
d.
e.
f.
g.
For example, Agent Nesbitt appeared to suggest that Mr. Shurtleff told Mr.
McBride: But you got your money, you got to promise us there cant be
anything else from you. You know, it just straight up. But there are either
no such statements included in the Task Forces enhanced transcript of the
recording, or Agent Nesbitt significantly misrepresented the import of the
statement.
h.
i.
By using quotation marks, Agent Nesbitt and members of the Task Force
intentionally or recklessly misquoted the tape and enhanced transcript of the
enhanced recording.
104.
Agent Nesbitt and the Task Force also materially omitted key portions of the
enhanced transcript in an effort to mislead the court into issuing warrants. Among other things,
the Task Force failed to include the following material information.
a.
The affidavits fail to mention that Mr. Shurtleff described Mr. Lawson as a
name dropper and the fact that Mr. Shurtleff appears to have disavowed any
knowledge or participation in Mr. Lawsons activities.
b.
The affidavits fail to mention that Mr. Shurtleff insisted that Mr. Lawson did
not represent his interests, and that he had been instructed to stop representing
that he could resolve issues through his connection to Mr. Shurtleff.
c.
The affidavits fail to mention that Mr. Shurtleff never authorized or condoned
Mr. Lawsons conduct or representations to Mr. McBride.
25
105.
Mr. Robbins, who denied owing money to Mr. McBride and denied any allegation that Mr.
Shurtleff approached Mr. McBride on his behalf.
106.
Agent Nesbitt possessed information that Mr. Shurtleff denied that Mr. Lawson
worked on his behalf. Despite that fact, he recklessly, intentionally, and misleadingly suggested
throughout search warrant affidavits that Mr. Lawson worked for Mr. Shurtleff without sufficient
supporting proof.
107.
Finally, Agent Nesbitt misconstrued the context of the conversation and Mr.
AGENT NESBITT AND THE TASK FORCE USED FALSE STATEMENTS AND
OMISSIONS RELATING TO JEREMY JOHNSON IN THE AFFIDAVITS.
108.
omissions relating to Jeremy Johnson, iWorks, and Mr. Swallows own campaign activities in an
effort to improperly incriminate Mr. Shurtleff and manufacture probable cause.
A.
Mr. Shurtleff has never denied that he and Mr. Johnson participated in and
sponsored private charitable initiatives.
109.
In a series of interviews with the FBI, Mr. Shurtleff discussed Mr. Johnson.
110.
by Mr. Swallow and Mr. Johnson in late 2012, which was months before the Lieutenant
Governors Office or the Utah Legislature began investigating Mr. Swallow.
111.
Years before federal investigators pursued regulatory and criminal actions against
Mr. Johnson, Mr. Shurtleff and Mr. Johnson participated in supporting two private charitable
organizations: the Utah Meth Cops Project, which offered treatment to police officers exposed to
26
hazardous chemicals during drug raids, and The Lost Boys, an organization that offers refuge to
young men without homes. Throughout the affidavits, Agent Nesbitt deliberately confuses
fundraising or assistance with fundraising for the charitable projects with political fundraising.
112.
Agent Nesbitt and members of the Task Force failed to disclose that the Utah
Division of Consumer Protection resolved its investigation into Jeremy Johnson and iWorks with
a settlement agreement dated October 1, 2003 and June 8, 2005, several years before Mr.
Shurtleff met Mr. Johnson.
113.
Agent Nesbitt and members of the Task Force failed to provide any supporting
evidence connecting Mr. Johnson to Mr. Shurtleff and improper conduct following his departure
from office. Despite the absence of a logical connection, Agent Nesbitt continuously emphasizes
the relationship between Mr. Shurtleff and Mr. Johnson in a manner that is misleading and
inaccurate.
114.
Agent Nesbitt deliberately omits a key piece of an interview with Mr. Johnson, in
which Mr. Johnson appears to have stated: [T]here was no quid pro quo with Mark Shurtleff.
VI.
Throughout the affidavits, Agent Nesbitt and members of the Task Force
Agent Nesbitt and the members of the Task Force juxtaposed unrelated information in order to
create false syllogisms and mislead the Court about the basis for the warrants.
27
117.
118.
During an interview with Agent Nesbitt, Mr. Eborn made vague references and
admitted that he could not remember specific statements, given the length of time that had
elapsed between his interview and events in 2008.
120.
Despite Mr. Eborns weak recollection of events, Agent Nesbitt and members of
the Task Force misquoted Mr. Eborns statements throughout the affidavit without disclosing
issues pertaining to his memory.
121.
Agent Nesbitt also failed to disclose that Mr. Eborn candidly admitted that he
Johnson and proclaim[ing] Mr. Johnson a legitimate businessman, when Mr. Eborn disavowed
similar statements during an interview with Agent Nesbitt.
123.
affidavits, it appears that Agent Nesbitt, at times, fabricated statements and attributed them to
Mr. Eborn.
28
B.
Agent Nesbitt misled the magistrate with inaccurate statements about Mr.
Shurtleffs Senate campaign and FBI interview.
124.
Agent Nesbitt and members of the Task Force mischaracterized the reasons that
Mr. Shurtleff abandoned a campaign for the United States Senate in 2009.
125.
Agent Nesbitt fabricated the statement: Mark Shurtleff said that the Bennett
campaign was not going to release any campaign ads against him.
126.
In fact, throughout his interview, Mr. Shurtleff described in detail the family
challenges and difficulty of balancing the responsibilities of the Attorney Generals Office with a
Senate campaign. Mr. Shurtleff clearly stated that he dropped out of the race in order to devote
additional time to his daughter, who was struggling with significant health issues.
127.
During his interview, Mr. Shurtleff was surprised at the allegations relating to the
Bennett advertisement, informed the FBI agents that it was the first instance that he had heard of
the allegations, and stated that his campaign staff may have been aware of the advertisement but
that they never said anything to Mr. Shurtleff.
128.
false statements to the FBI, when in fact Mr. Shurtleff openly addressed and responded to the
FBI agents questions relating to his decision to drop out of the Senate campaign.
C.
129.
Agent Nesbitt failed to inform the Magistrate of the contents of an interview with
Ms. Barlow, where Ms. Barlow indicated that she did not have personal knowledge of a quid
pro quo agreement between [Mr. Shurtleff] and [Mr. Jenson, and that she] did not think that it
was unethical that [Mr. Shurtleff] wanted a plea in abeyance instead of a trial.
29
D.
130.
omissions to mislead the magistrate about the State of Utahs participation in Bell v.
Countrywide Bank NA, a private civil suit pending in the United States District Court for the
District of Utah from March 2011 to February 2013.
131.
details relating to the Bank of America allegations. For example, the private action, which
involved more defendants than just Countrywide Bank, N.A. d/b/a/ Bank of America, was
originally filed in state court. It was not removed to federal court until March 22, 2011.
Similarly, Agent Nesbitt made little or no attempt to obtain relevant and key information from
Troutman Sanders before including sweeping misrepresentations in the search warrant affidavits.
132.
inference from the fact that Mr. Shurtleff met with Countrywide representatives and then, two
weeks later, granted an extension to Countrywide. There is nothing improper or unlawful about
meeting attorneys or granting an extension as part of civil litigation. In fact, Utahs Standards of
Professionalism and Civility encourage attorneys to grant reasonable requests for extensions.
133.
To further confuse the separate and independent conduct of Mr. Shurtleff and Mr.
Swallow, Agent Nesbitt falsely alleged that Mr. Shurtleff gave the order to grant the extension,
when in fact evidence suggested that the order for an extension originated with Mr. Swallow.
134.
Agent Nesbitt confused the timeline of the Bell litigation by intentionally omitting
the fact that Mr. Swallow did not know that hosts of the fundraiser were involved in the
foreclosure case until after the date of the States intervention or the extension.
30
135.
effort to mislead the magistrate into believing that the two events were related. Agent Nesbitt
had no information or evidence that Mr. Shurtleffs offer of employment on the State Attorneys
General Team of a nationwide firm that represents hundreds of corporate clients bore any
relation to the States minor participation in the Bell litigation.
136.
Attorney General Jerry Jensens exclusion from the Bell litigation in the fall of 2012. Agent
Nesbitt, however, fails to inform the magistrate that Jerry Jensen, who instigated intervention in
the litigation, had been removed from the case due to a perceived personal conflict.
137.
Agent Nesbitt created a false and misleading inference about the circumstances
Misconstruing the import and scope of settlement negotiations in the Bell case,
Agent Nesbitt intentionally or recklessly attempted to create a misleading inference that the
Attorney Generals Office abandoned the interests of thousands of Utah citizens. In fact, even as
it withdrew from the Bell litigation, the Attorney Generals Office remained active in asserting
the same arguments and interests in other cases.
139.
America two years before Mr. Bell filed his private civil action. Mr. Shurtleffs office negotiated
a nationwide settlement with the five largest banks, including Bank of America, which brought
tens of millions of dollars to Utah homeowners and the State for the benefit of those who fell
victim to anti-consumer practices.
31
140.
For example, the Utah Supreme Court issued a decision favorably to Utah in
Federal National Mortgage Association v. Sundquist,9 a case which was briefed during Mr.
Shurtleffs administration and decided after his departure from office.
141.
Moreover, Agent Nesbitt failed to provide any discussion of the five cases in
which the State continued to pursue the interests of homeowners, despite the fact that Judge
Jenkins considered these cases when determining whether to allow dismissal in the Bell case.
142.
By failing to mention these cases, Agent Nesbitt misled the magistrate about Mr.
Agent Nesbitt further failed to mention that Judge Jenkins ultimately approved the
settlement, in part based on the States representation that the interests of homeowners were
protected in other pending litigation.
E.
144.
On May 6, 2013, Mr. Shurtleff visited the FBIs office for the purpose of answers
questions arising out of the investigation of Mr. Swallow. Mr. Shurtleff perceived his
participation as voluntary. Attendees included Mr. Shurtleff, Special Agent Jon Isakson, Special
Agent Crystal Bowen, and Ed Sullivan.
F.
145.
finishing a work of historical fiction, which was later published as Am I Not A Man? The Dred
Scott Story.
9
32
146.
Throughout the affidavits, Agent Nesbitt created a series of false and misleading
statements in an effort to suggest that the visits to California were illegal or had an improper
purpose, as discussed below.
147.
interview of Mr. Jenson. Agent Nesbitt fails to mention or ignores significant exculpatory
statements derived from recordings of Mr. Jenson, who was serving a lengthy prison sentence,
and which Agent Nesbitt obtained from Beaver County Jail.
148.
Shurtleff continued to actively pursue restitution payments through 2009 and 2010.
VII.
AGENT NESBITT AND MEMBERS OF THE TASK FORCE KNEW THAT THE
INFORMATION IN THE AFFIDAVITS WAS FALSE AND MISLEADING.
150.
The Salt Lake District Attorneys Office and FBI-Utah provided oversight,
encouragement, and assistance to Agent Nesbitt and other members of the Task Force throughout
the course of the investigation, which lasted several months.
151.
On information and belief, FBI-Utah provided state agencies with access to the
files containing accurate information about Mr. Shurtleffs role in its investigation of Mr.
Jensons attempts to improperly influence his criminal case in 2008.
152.
possessed accurate information about the circumstances surrounding the recorded conversations.
33
153.
The Salt Lake District Attorneys Office, which had access to FBI-Utahs files,
provided oversight when Agent Nesbitt submitted intentionally and recklessly false statements in
affidavits in order to manufacture probable cause and particularity where none actually existed.
154.
For all of these reasons, the Task Force, including Agent Nesbitt and the Salt
Lake District Attorneys Office, could not have been mistaken about the false and inaccurate
statements used in the affidavits to secure a series of search warrants.
VIII.
AGENT NESBITT AND THE TASK FORCE REPEATED THE FALSE AND
MISLEADING STATEMENTS IN A SERIES OF AFFIDAVITS.
155.
If Mr. Shurtleff pursues the Motion to Suppress, he intends to file an exhibit that
cross-references the many instances in which Agent Nesbitt used identical intentional or reckless
misrepresentations and material omissions to obtain otherwise private information from
numerous other sources and individuals.
IX.
When preparing and submitting the search warrant affidavits, Agent Nesbitt relied
Agent Nesbitts
dependence on the federal investigatory work is illustrated by the fact that SA Isakson is
referenced approximately 67 times throughout Search Warrant Affidavit 158, and SA Ulsh is
referred to approximately 9 times. Agent Nesbitt also references interviews initially conducted
by FBI-Utah or DOJ-PIN, including interviews involving Mr. Shurtleff.
157.
Agent Nesbitt devotes substantial time and attention in the affidavits to several
key witnesses in this case, including Mr. Jenson and Mr. Johnson, who both appear to have
interacted with FBI-Utah.
34
158.
individuals referenced through Agent Nesbitts affidavits, and Agent Nesbitts misleading
narrative, as described above, Mr. Shurtleffs ability to assert and prevail on his Franks claim
will depend, at least in part, on production of all exculpatory and impeachment evidence,
including information pertaining to the propriety of FBI-Utahs involvement in the investigation
and documents within the scope of Mr. Shurtleffs outstanding discovery requests.10
159.
The following table, which incorporates the facts described above, contains
10
35
Contain An
Express
Falsehood
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
X11
X12
9. Charlene Barlow told your affiant that she had never heard
of Mark Shurtleff getting involved in any case before, and she
worked for the Utah Attorney General's Office for over 20
years. Charlene Barlow told your affiant that she laid out the
case for Mark Shurtleff and explained to him that the case was
strong with good witnesses. Charlene Barlow told your affiant
that Mark Shurtleff did not seem convinced but told her to
proceed with the case if she felt that the case was strong.
X13
X14
11
Relies on
Misleading
Inference
Misc.
Additional
Issues
Throughout Affidavit 158, Agent Nesbitt omits material information relating to Mr. Jensons criminal case,
including facts relating to the strength of charges, the nature of Mr. Shurtleffs participation in plea negotiations, Mr.
Shurtleffs insistence on restitution, and Mr. Shurtleffs participation in a federal investigation into whether Mr.
Jenson and his associates attempted to improperly influence Mr. Jensons criminal case. Supra SOF, II.
12
13
Supra SOF, II; see also SOF, 42, 46, 47, 7171.d.
14
36
Contain An
Express
Falsehood
10. Charlene Barlow told your affiant that before the case
against Marc Jenson was resolved, the Utah Attorney
General's Office received a complaint about Marc Jenson's
involvement in the Mount Holly project, and she forwarded
the complaint to the Utah Division of Securities for
investigation. The Mount Holly project involved Marc Jenson
and others soliciting investments to construct a ski resort and
golf course in Beaver County, Utah. Charlene Barlow told
your affiant that the weekend before the trial was to begin for
the case she filed against Marc Jenson; she saw a big article in
the news media regarding the case. Charlene Barlow told your
affiant that the article mentioned behind the scenes
information about Mount Holly and that Mark Shurtleff had
met with Marc Jenson. Charlene Barlow told your affiant that
she heard rumors that Marc Jenson offered to help Mark
Shurtleff with his election if Mark Shurtleff would make the
case go away.
Contains
Material
Omission(s)
X15
15
16
17
Agent Nesbitts reliance on rumors and articles created a substantial hearsay issue.
37
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X16
X17
Contain An
Express
Falsehood
11. Charlene Barlow told your affiant that before the trial was
to begin, Kirk Torgensen told her that Mark Shurtleff was not
comfortable with the case. Charlene Barlow told your affiant
that it became clear to her that Scott Reed or Kirk Torgensen
would try to pull the plug on the case. Charlene Barlow told
your affiant that the week before the trial was to begin; Scott
Reed told her that Mark Shurtleff had told him to offer Marc
Jenson anything to make the case go away. Charlene Barlow
told your affiant that Scott Reed started working on a plea in
abeyance agreement to which she strongly objected because
the case was solid. Charlene Barlow told your affiant that she
had never seen a high profile case like this result in a plea in
abeyance agreement, and Scott Reed told her that Mark
Shurtleff had ordered him to do the plea deal. Charlene
Barlow told your affiant that she refused to offer the plea in
abeyance and said she would quit before she would do so.
Charlene Barlow told your affiant that Scott Reed made the
plea offer.
18
Contains
Material
Omission(s)
X18
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X19
19
Paragraph 11 appears to be drawn largely from Ms. Barlows FBI interview. Agent Nesbitt includes a misleading
inference insofar as it is not clear from the FBI interview whether the plea in abeyance should be attributed to Mr.
Shurtleff or Mr. Reed. In short, this paragraph illustrates how Agent Nesbitt construed testimony and interviews to
fit a particular theory of the case, even if that theory was inaccurate.
38
Contain An
Express
Falsehood
20
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
X20
X21
Relies on
Misleading
Inference
Misc.
Additional
Issues
Agent Nesbit mischaracterizes Mr. Shurtleffs role in negotiations. See supra SOF, II.
21
Agent Nesbitt intentionally misconstrues the email, which states: In sum, Im okay with a shorter abeyance
period but think he should pay a bigger financial penalty. . . . My biggest concern is that Charlene will think I dont
trust her or value all of her outstanding work on this case, so please discuss it with Charlene.
39
Contain An
Express
Falsehood
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
X22
X23
X24
X25
Misc.
Additional
Issues
22
Agent Nesbitt fails to acknowledgelet alone discussMr. Shurtleffs critical role in instigating the federal
investigation and participating as a confidential informant. See supra SOF, II, A.
23
Agent Nesbitt attempts to give rise to a false and misleading inferencethat Mr. Shurtleff would be willing to
accept contributions in exchange for dismissal. In fact, the opposite is trueMr. Shurtleff consistently refused to
dismiss the charges. Supra SOF, II.A, II.C.
24
25
40
Contain An
Express
Falsehood
26
27
28
29
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
X26
X27
X28
X29
Misc.
Additional
Issues
Agent Nesbitt intentionally or recklessly confused the timeline of events in order to create a causal connection,
when in fact no such causal or temporal connection existed. Supra SOF, 84-85.
41
Contain An
Express
Falsehood
X30
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
X31
X32
30
Agent Nesbitt intentionally misrepresents the amount of the campaign contribution. Supra Part III.
31
32
42
Misc.
Additional
Issues
Contain An
Express
Falsehood
Contains
Material
Omission(s)
X33
X35
X36
33
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X34
34
Agent Nesbitt intentionally and improperly attempts to create a negative inference that the judicial finding
surrounding the proposed plea agreement, which was negotiated by Mr. Reed and Mr. Skordas, should be attributed
to Mr. Shurtleff. Supra SOF, II.A, II.C.
35
36
43
Contain An
Express
Falsehood
Contains
Material
Omission(s)
X37
23. Marc Jenson told Special Agent Jon Isakson that Timothy
Lawson's value to him was his close friendship with Mark
Shurtleff, and it was arranged through Timothy Lawson for
Mark Shurtleff and John Swallow to visit him (Marc Jenson)
and stay with him (Marc Jenson) at Pelican Hill. Marc Jenson
told Special Agent Jon Isakson that the purpose of Mark
Shurtleff and John Swallow's trip was to meet Marc Jenson's
investor friends from New York and Los Angeles. Marc
Jenson told Special Agent Jon Isakson that Mark Shurtleff
told him that he wanted to meet his business associates to seek
funding for his United States Senate campaign.
X38
37
38
Id
44
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
Contain An
Express
Falsehood
Contains
Material
Omission(s)
24. Marc Jenson told Special Agent Jon Isakson that Mark
Shurtleff and John Swallow made two trips to Pelican Hill
that he (Marc Jenson) fully funded. Marc Jenson told Special
Agent Jon Isakson that during the trips, Mark Shurtleff
apologized for what happened to him (Marc Jenson) and told
him that if he had contributed to him (Mark Shurtleff's
campaign) before the charges were filed, none of this would
have happened. Marc Jenson told Special Agent Jon Isakson
that Mark Shurtleff told him that if he would have been a
contributor to his campaign, he would never have been in
trouble in the first place. Marc Jenson told Special Agent Jon
Isakson that it was very clear that in exchange for the trips and
him introducing Mark Shurtleff and John Swallow to his
friends he would never have problems in the state of Utah
again.
X39
X40
X41
X42
X43
Misleads Re
Third-Party
Statement
39
Mr. Shurtleff expressly denies making the false statements attributed to him in this paragraph.
40
41
42
43
45
Relies on
Misleading
Inference
Misc.
Additional
Issues
Contain An
Express
Falsehood
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
44
X44
Agent Nesbitt does not include any reference to an explanatory email from Mr. Wadley to Mr. Donner.
46
Misc.
Additional
Issues
Contain An
Express
Falsehood
33. An email dated September 23, 2009, was from Scott Reed
to Kirk Torgensen using their state email accounts. The email
read "Do you remember whether the Attorney general was in
California around the first part of May? I just got off the
phone with Morty Elbling, who says that Tim Lawson says
that the AG met with Mark Jenson in California around Cinco
de Mayo, and that Lawson was there with him when the
meeting occurred. This would be a different meeting than the
one we know about in June where the AG went to church and
had lunch with Jenson. This coincides with Mark's directive to
put a bunch of Mounty Holly complaints on a fast track,
involving Steve Jenson and others, who were claiming to have
been bilked by some very bad men out of New York. Mark
put out those complaints on May 8, arguably after his meeting
with Jenson and Lawson and getting an earful about Mt. Holly
and probably saying something like 'put it in writing and I'll
give it to my investigators, and in the meantime I'll call my
good friend AG Cuomo in New York and get something
going for you.' Interesting if true. Whether it's true or not,
Channel 5 has it, which means that everybody who cares has
it too, and it will come out sometime during the campaign.
SWR".
X45
45
46
Contains
Material
Omission(s)
X46
47
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
X47
X48
X49
47
48
49
50
Contain An
Express
Falsehood
48
Relies on
Misleading
Inference
X50
Misc.
Additional
Issues
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
X51
X52
X53
X54
X55
51
Contain An
Express
Falsehood
Misc.
Additional
Issues
52
Supra SOF, IV, see also SOF, 104, 106. Specifically, Agent Nesbitt took Mr. Shurtleffs statement
completely out of context.
53
54
55
Supra SOF, IV, see also SOF, 104, 106. In fact, it was Mr. McBride who described the Ponzi scheme, and
there was no firm acknowledgement from Mr. Shurtleff, in part because Mr. Shurtleff had little familiarity with Mr.
Robbinss business activities at the time of the meeting, which Mr. McBride pursued.
49
Contain An
Express
Falsehood
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
X56
X57
X58
X59
56
Misc.
Additional
Issues
Mr. Shurtleff denies that he ever informed or instructed Mr. Jenson to pay $2,000,000 to give to Mr. McBride.
Agent Nesbitt improperly relied on this theory without conducting any investigation. Indeed, the AGs Office
recently obtained a determination from the Board of Pardons that controverts this narrative. Jennifer Dobner, Utah
Parole Board: $4.1 Million Still Owed by Businessman with Ties to Shurtleff, Swallow Scandal, Salt Lake Tribune
(Mar. 21, 2016), available at http://www.sltrib.com/home/3689548-155/utah-parole-board-41-million-still. More
importantly, there is no indication or allegation that the Mr. Jenson ever made any claims of these claims between
2010 and 2012. Agent Nesbitt also fails to mention that Mr. Jenson began making these allegations after he believes
there was a threat on his life while in state custody, or the fact that Mr. Jenson was desperate to leave incarceration.
57
58
59
50
Contain An
Express
Falsehood
X60
60
61
Contains
Material
Omission(s)
X63
62
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X61
X62
X64
As discussed throughout the Brady Motion and Exhibit A, Mr. Shurtleff seeks a wealth of Brady information
relating to allegations involving Mr. Johnson and Senator Harry Reid, both of whom Agent Nesbitt references
throughout the search warrant affidavits.
63
64
51
Contain An
Express
Falsehood
X65
65
66
Id.
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X66
X67
X68
67
Agent Nesbitt knew or should have known Mr. Shurtleffs employment had nothing to do with Bank of America,
because Agent Nesbitt had already contacted Troutman Sanders to discuss an investigative subpoena that had been
served on the firm. Instead of conducting adequate research, Agent Nesbitt made reckless, uninformed, and
inflammatory statements about Mr. Shurtleffs employment. Supra SOF, VI.D; see also SOF, 131.
68
Id.
52
Contain An
Express
Falsehood
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
97. On October 30, 2012, the Bells were accepted into a loan
modification program with Bank of America they sought to
obtain for several months. The modification came after
contacting John Swallow and asking for his assistance on
October 28, 2012. The Bells received a significant reduction
in the loan principal and interest rate. The modification the
Bells received entailed a $1.13 million reduction in their loan
balance, and reduction of their interest rate from 7.5% to
2.65%. The modification did not affect the pending litigation
on behalf of thousands of Utahns whose interests were being
represented by the Utah Attorney General's Office. .
X69
X70
X71
X72
X73
Misc.
Additional
Issues
X74
69
Agent Nesbitt omitted the fact that attempts to resolve the matter through settlement pre-dated October 2012.
70
71
72
73
Agent Nesbitt intentionally omits that, by December 2012, Mr. Jensen was no longer assigned to handle the
motion, due to personal conflicts.
74
53
Contain An
Express
Falsehood
Contains
Material
Omission(s)
X75
X76
75
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X77
X78
Agent Nesbitt intentionally omits that, by December 2012, Mr. Jensen was no longer assigned to handle the
motion, due to personal conflicts. See also supra SOF, VI.D.
76
77
Id.
78
Id.
54
Contain An
Express
Falsehood
Contains
Material
Omission(s)
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X79
X80
X81
X82
X83
79
80
81
82
Paragraph 120 contains a false syllogism. The use of the word however creates a misleading impression that
Mr. Shurtleff knew that Mr. Lawson actually received payment from Mr. Jenson to unduly influence the Attorney
Generals Office during his FBI interview, and that Mr. Shurtleff lied about the existence of the offer. In reality, Mr.
Shurtleff not only openly discussed the email during the interview, but also provided FBI agents with specific names
of other individuals who attempted to influence Mr. Jensons prosecution.
83
55
Contain An
Express
Falsehood
Contains
Material
Omission(s)
X84
X85
Misleads Re
Third-Party
Statement
Relies on
Misleading
Inference
Misc.
Additional
Issues
X86
84
Agent Nesbitt deliberately mischaracterized Mr. Shurtleffs statement. In response to a question regarding Ms.
Barlows decision to leave the case, Mr. Shurtleff stated: I think I assumed it was because Charlene wanted to go
forward and didnt have confidence or something didnt feel like she had-I-she had my confidence[.] I dont know
if she ever told me that or Scott told me that or whatever[.]
85
86
Through the affidavits, Agent Nesbitt mischaracterizes statements in an attempt create a false inference that Mr.
Shurtleff provided false information to the FBI. Paragraph 127 illustrates the defects in Agent Nesbitts
inflammatory characterizations, which were inconsistent with the underlying facts. Supra SOF, II.A, II.C
56
CERTIFICATE OF SERVICE
I hereby certify that, on the 24th day of June 2016, a copy of the foregoing was filed and served
via electronic notification on the following:
Troy S. Rawlings
David M. Cole
Davis County District Attorney
800 West State Street
Farmington, Utah 84025
Simarjit S. Gill
Chou Chou Collins
Byron Fred Burmester
Salt Lake County District Attorney
111 East Broadway, Suite 400
Salt Lake City, Utah 84111
57