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SALT LAKE CITY — A co-defendant in the iWorks fraud case wants the charges against him dropped because his name appears on Jeremy Johnson's list of people he claims federal prosecutors agreed not to go after.
Former iWorks general manager Bryce Payne filed two motions Sunday in federal court — one alleging illegal selective prosecution and the other citing a binding non-prosecution agreement with the government.
Payne's name is among those on two lists of people iWorks founder Johnson wanted protected from prosecution as part of a proposed plea bargain in January 2013 in which Johnson would admit to bank fraud and money laundering. Payne had not been charged with any crimes at the time.
The deal fell apart when prosecutors balked at some of the names on the lists, which included Johnson's parents, iWorks employees and former Utah Attorney General John Swallow. Prosecutor Brent Ward submitted the lists to the court, but withdrew them when the agreement unraveled.
Payne's attorney, Ed Wall, argues in the new court filings that Ward gave his word that no one on the list would be prosecuted "regardless" of whether Johnson pleaded guilty.
Ward's assertion stands today "without contradiction or retraction," according to Wall's motion.
"At the time the United States bound itself to not prosecuting Mr. Payne, the seated United States attorney for the District of Utah, together with at least three other assistant United States attorneys were present — not one of them asserted that the agreement and representations by Mr. Ward to the court that Mr. Payne would not be prosecuted was in any regard mistaken," Wall wrote.
Two months after the deal fell apart, prosecutors filed a new indictment against Johnson, adding Payne, Scott Leavitt, Loyd Johnston and Ryan Riddle as defendants.
Johnson, Payne, Leavitt and Johnston face 86 counts of conspiracy, false statements to banks, wire fraud, bank fraud, participating in fraudulent banking activities, money laundering, conspiracy to commit money laundering and aiding and abetting.
At the time the United States bound itself to not prosecuting Mr. Payne ... not one of them asserted that the agreement and representations by Mr. Ward to the court that Mr. Payne would not be prosecuted was in any regard mistaken.
–Ed Wall, Payne's attorney
Riddle is charged with 55 counts because he had resigned before some of the alleged crimes had taken place.
Prosecutors allege iWorks lured Internet consumers into "trial" memberships for bogus government grants and moneymaking schemes and then repeatedly charged their credit cards for services they didn't sign up for.
Wall also argues that because the government targeted some but not all the people on the lists, its prosecution of Payne is selective and discriminatory.
Prosecutors, he contends, need probable cause to prosecute any of the names on the list.
"Otherwise, the United States could not have been acting in good faith; but instead — illegally," Wall wrote.
The U.S. Attorney's Office has kept the lists since withdrawing them from evidence at the 2013 hearing. The court has granted Wall's request to compel the office to produce the lists for his defense of Payne, but it has not responded, keeping the lists out of the public record. Wall filed a third motion asking the court to order the government to explain why it has not provided the lists. He wrote that prosecutors have told him the lists aren't available and can't be found. Johnson is a key figure in the state criminal charges pending against Swallow and his predecessor, former Attorney General Mark Shurtleff. State prosecutors allege they accepted gifts from Johnson, including use of his house, private jet and luxury houseboat.