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SALT LAKE CITY — Former Utah Attorney General Mark Shurtleff believes the federal government has evidence he needs to defend himself against public corruption charges in state court, including an investigation in which he acted as a confidential informant.
His attorney, Richard Van Wagoner, joined Davis County Attorney Troy Rawlings in asking a 3rd District judge to force the U.S. Department of Justice and FBI to turn over all information agents gathered investigating Shurtleff and his successor, John Swallow. Rawlings is prosecuting Shurtleff.
"The federal government and DOJ by way of the FBI should not be permitted to have it both ways, that is, stay involved in a state prosecution but refuse to play by the state constitution and state rules of discovery," Van Wagoner wrote in a prepared statement.
Local FBI agents continued to work with state investigators on the case after the DOJ Public Integrity Section declined to file charges against Shurtleff and Swallow in 2013.
In a court filing last month, the DOJ said it has given state prosecutors hundreds of thousands of relevant documents.
'Fox guarding the henhouse'
But Van Wagoner said much of it is irrelevant and was in an unsearchable format. "The DOJ claim that it has produced everything the federal government deems relevant to this prosecution is a classic case of the fox guarding the henhouse," he said.
In his statement, Van Wagoner cites two examples of evidence he has sought but not received.
One involves Shurtleff acting as a confidential informant for the FBI in a 2007 sting operation aimed at two men, Marc Sessions Jenson and Paul J. Nelson, whom he says tried to bribe him.
Nelson, who provided security services for Jenson, denied the accusation in a brief interview with KSL last year. Jenson was recently released from prison after serving four years for selling unregistered securities.
- 5 felonies: 3 counts of accepting gifts, 1 count of bribery to dismiss a criminal proceeding, 1 count obstruction of justice
- 2 misdemeanors: 1 count obstruction of justice, 1 count official misconduct
- Plea: Not guilty
October 2007 sting operation
The sting operations were carried out at Shurtleff's parents' house and in his hospital room in October 2007, according to court documents. Shurtleff was recovering from surgery to his leg after a motorcycle accident at the time.
Shurtleff said last summer he was surprised to learn the recordings from the sting operation were being used as evidence that he solicited a bribe.
Van Wagoner said there is "significant overlap" between the FBI agents involved in the sting and the investigation and prosecution of Shurtleff.
"A full inquiry into the overlap and conflicts is essential in order to understand the extent of the taint, if any," Van Wagoner wrote.
The other example Van Wagoner cites is from Nov. 20 when Shurtleff went to the FBI with "disclosures" he had received about efforts to bribe a U.S. senator, according to Van Wagoner's statement. That involved allegations by indicted businessman Jeremy Johnson that Swallow was part of an effort to enlist Sen. Harry Reid, D-Nev., to derail a federal investigation into Johnson's Internet marketing company.
Van Wagoner said Shurtleff is entitled to all information relating to what the FBI and the DOJ did or failed to do in following up on that and what bearing it had on Shurtleff's prosecution and the "FBI's reaching its hand from the grave after the Public Integrity Section said 'no.'"
Shurtleff is charged with five felonies — three counts of accepting gifts and one each of bribery to dismiss a criminal proceeding and obstruction of justice — and two misdemeanors of obstructing justice and official misconduct. He has pleaded not guilty.
