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SALT LAKE CITY — A 3rd District judge declined Friday to throw out the racketeering charge against former Utah Attorney General John Swallow.
Judge Elizabeth Hruby-Mills ruled that the state put on sufficient evidence for a reasonable jury to convict Swallow of pattern of unlawful activity.
Prosecutors allege that Swallow, his predecessor Mark Shurtleff and the late Tim Lawson were part of a criminal enterprise aimed at advancing their financial and political aspirations.
Evidence shows that the three men traveled to the posh Pelican Hill resort in Southern California and took advantage of golf, food and spa treatments, the judge wrote. Swallow and Lawson helped raise money for Shurtleff's political campaigns, and the two former attorneys general met with industry groups to solicit funds.
"There was testimony that Mr. Swallow had indicated he expected to become the next attorney general after Mr. Shurtleff," Hruby-Mills wrote.
Swallow's defense attorney Scott Williams asked the judge Thursday for a "directed verdict" — basically a request for her to consider throwing out some or all of the charges.
Motions for directed verdicts are typical in criminal trials but judges don't often grant them, even though the reasonable doubt standard that juries must apply is lower.
Hruby-Mills ruled only on the racketeering charge Friday.
Swallow faces 10 charges: pattern of unlawful activity, accepting a gift, two counts of receiving or soliciting a bribe, and making false statements, all second-degree felonies. He also is charged with two counts of evidence tampering, misuse of public money and obstruction of justice, all third-degree felonies. Swallow is also charged with falsifying a government record, a class B misdemeanor.
Once imprisoned businessman Marc Sessions Jenson paid for the Pelican Hill trips when he was under a plea-in-abeyance agreement monitored by the attorney general's office and Shurtleff was the attorney general. He claims Swallow, Shurtleff and Lawson extorted him for money and favors.
The judge found "substantial" contact between Swallow, Shurtleff and Lawson, including emails, texts, phone calls and meetings.
Another of Swallow's attorneys, Brad Anderson, argued Thursday that a string of text messages doesn't make a criminal enterprise. Swallow, he said, didn't know about some of the things Lawson and Shurtleff were doing.
Anderson also noted that Jenson was the state's only witness on the racketeering charge.
Hruby-Mills also wrote that the evidence shows Shurtleff pulled the state out of a lawsuit with Bank of America to help Swallow.
Swallow allegedly benefited financially from a fundraising effort with Tim and Jennifer Bell who had sued the bank over its foreclosure practices in 2011. The attorney general's office intervened in that case to prevent the bank from conducting nonjudicial foreclosures in Utah, representing thousands of Utahns whose property faced foreclosure.
Shurtleff withdrew from the lawsuit during his last days in office, after Swallow was elected attorney general. In an email to an assistant attorney general who had worked on the case, Shurtleff wrote that staying in the litigation was "becoming a very complicated issue" for Swallow because of that fundraiser.
The Bells testified that they in no way tried to bribe Swallow. They had already settled with Bank of America without involvement from the attorney general's office when they hosted the fundraiser.
"We didn't need any help," Tim Bell testified.
On Thursday, the Salt Lake County District Attorney's Office dropped three charges against Swallow: receiving or soliciting a bribe and money laundering, second-degree felonies; and tampering with evidence, a third-degree felony.
Prosecutors based those charges on claims made by imprisoned businessman Jeremy Johnson, who has refused to testify at the trial. Johnson accused Swallow of being part of a plan to bribe then-U.S. Senate Majority Leader Harry Reid, D-Nev., in an attempt to end a Federal Trade Commission investigation into Johnson’s online marketing company, iWorks.
The prosecution rested Thursday and the defense called its first two witnesses. Hruby-Mills gave the jurors Friday off so lawyers could work out jury instructions and to hold a hearing on whether Davis County Attorney Troy Rawlings can testify for the defense.
Swallow and Shurtleff were initially charged as co-defendants. Rawlings took over the Shurtleff prosecution when the cases were separated.
Rawlings ultimately dropped all the charges against Shurtleff, citing the Department of Justice refusing to turn over what he believes is key evidence. Prosecutors oppose him taking the witness stand.
Hruby-Mills barred Swallow's attorney from bringing up during the trial that Rawlings dismissed the case against Shurtleff.
Defense attorney told the judge they could wrap up their case Tuesday and closing arguments could be Wednesday.