This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Prosecutors wrapped up their part of John Swallow's public-corruption trial Thursday, but not before dropping three of the 13 charges the former Utah attorney general faced.
The three felony counts eliminated were allegations of receiving or soliciting a bribe, money laundering and evidence tampering.
"Trials are fluid," Salt Lake County District Attorney Sim Gill told The Salt Lake Tribune. "Sometimes, as the evidence or situation changes, so does what we can prosecute, and it's our obligation to do the right thing and make that correction to reflect the evidence."
The dismissals, which 3rd District Judge Elizabeth Hruby-Mills accepted, were not necessarily unexpected.
The three counts are tied partly to Jeremy Johnson, the imprisoned St. George businessman who repeatedly refused to testify, citing his Fifth Amendment right against self-incrimination.
Johnson was convicted last year of federal charges for lying to a bank and is serving an 11-year prison term in California. Starting on Feb. 15, he took the witness stand and said that, on the advice of his attorneys, he wouldn't answer questions without an ironclad immunity agreement from the U.S. Justice Department.
That assurance never came, and Johnson was ordered to serve a 30-day jail term for contempt.
"Certainly, his not testifying affected their ability to put on evidence," Swallow's attorney Scott C. Williams said Thursday. "I can't speak to whether that would have happened even if he had testified."
Williams said he was not surprised by the prosecutors' decision to scrap the three counts, but he had hoped they might excise even more from the case.
"If they don't," Williams said, "the jury will."
The 12 jurors — seven men and five women — were sent home early Thursday, so the defense could ask for a "directed verdict." That's the legal term for a judge's dismissal of some or all criminal charges.
Such arguments are standard in criminal trials once prosecutors rest their case. They typically prove unsuccessful.
Swallow attorney Brad Anderson argued for a directed verdict, rattling off each remaining charge and pointing to the lack of evidence to convict the former attorney general.
Swallow still faces 10 counts — nine of them felonies — and could spend up to 30 years in prison if convicted.
Prosecutors kept in place, for instance, a felony gift count, accusing Swallow of using Johnson's luxury Lake Powell houseboat at a time the businessman was battling a federal investigation of his online-marketing company.
Probably the most serious charge still staring at Swallow is the racketeering count, which requires prosecutors to show that Swallow participated in a common criminal enterprise along with his immediate predecessor, former three-term Attorney General Mark Shurtleff, and Shurtleff's so-called "fixer," the late Tim Lawson.
Prosecutors argued that Shurtleff sat at the top of a three-pronged conspiracy, with Lawson as the muscle and Swallow as the moneyman.
Anderson countered that the only thread connecting the three during the time of the alleged enterprise came from phone records, which showed numerous communications but not the content of those calls or texts.
He said raising campaign funds and running for office apparently were the "criminal" acts prosecutors were alleging under the racketeering charge.
Hruby-Mills said she planned to rule on at least part of the defense motion Friday morning.
Williams said the tossed charges — primarily the bribery and money-laundering ones — stem from "wild allegations" of an attempt to bribe then-Sen. Harry Reid, D-Nev., and money that flowed among Johnson, Swallow and the late Check City founder Richard Rawle.
Prosecutors contend that, in 2010, Johnson turned to Swallow, for assistance fending off a Federal Trade Commission investigation of the businessman's I Works company. Swallow helped arrange a meeting between Johnson and Rawle, who reportedly had ties to Reid through the payday-lending industry.
Johnson told investigators he paid $250,000 to Rawle's RMR Consulting — formed after the pair met — as part of the deal.
Swallow has argued the effort was for lobbying, but in a conversation with Shurtleff in 2012, Johnson said it was an attempt to bribe Reid. Shurtleff took that information to the FBI, although no one has been prosecuted for attempting to bribe the former Senate majority leader.
Rawle paid $23,500 of the Johnson funds to Swallow. The money went into Swallow's P-Solutions consulting company account on the same day Rawle set up his RMR business. Those transactions were detailed for jurors through the testimony of an FBI forensic accountant who examined bank records of RMR and P-Solutions.
Cort Walker, a Check City senior manager, corroborated Swallow's contention that the $23,500 was for work he had done for Rawle on a Nevada cement plant.
After Swallow met with Johnson at an Orem Krispy Kreme doughnut shop, he became worried that he had been paid with money from Johnson. Walker said Swallow gave the money back and asked Rawle to cut him a new check from a different account.
The last of the dismissed counts, evidence tampering, was tied to allegations that in May 2012, Swallow allegedly created invoices and drafted a letter meant to show the money he received from the Rawle-Johnson deal was for work he did on the cement plant.
The defense scored an additional legal victory Thursday. The jury was allowed to hear that the lead FBI agent on Swallow's case had violated a court order when he testified about the Justice Department Public Integrity Section's decision not to bring federal criminal charges against Swallow and Shurtleff.
On Wednesday, special agent Jon Isakson, said the local FBI office had asked the DOJ not to file charges so that agents could work on a parallel investigation with Gill and Davis County Attorney Troy Rawlings. He gave the testimony in response to a question from prosecutors.
Hruby-Mills had barred testimony about the federal government's decision as part of a pretrial motion sought by prosecutors, who argued the information was not relevant to Swallow's case.
Williams capitalized Thursday, winning permission to ask Isakson about his statements. She also allowed Williams to enter into evidence a copy of the September 2013 Justice Department letter stating that it had reviewed the investigation and determined charges were not warranted.
The judge told jurors that they should give no "weight" to Iskason's testimony about why federal prosecutors declined to file charges.
— Tribune reporter Tom Harvey contributed to this story