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St. George businessman Jeremy Johnson and two former employees are going on trial within days without access to emails and information on a computer server from Johnson's online marketing company.

At a hearing Wednesday, U.S. Magistrate Judge Paul Warner said all efforts had failed to recover emails missing from a server used by Johnson's I Works company. With final jury selection just days away, the trial will take place without them, Warner said.

An FBI agent who specializes in electronic evidence could not get the hard drive seized from the company in 2011 to function, and that meant he could not search for any emails that might have been erased, Warner said.

Johnson and co-defendants Scott Leavitt and Ryan Riddle are facing 86 charges, the main ones alleging they committed bank fraud. They are alleged to have used "straw companies" to apply for accounts at Wells Fargo Bank in order to charge customers' credit cards after I Works was placed on industry watchlists for high rates of chargebacks.

But they contend that their emails from a critical period within the indictment are missing from the company server that had been seized after the Federal Trade Commission sued Johnson, I Works and others in December 2010 in federal court in Nevada.

In a filing in that civil suit, Johnson said an invoice showed that the receiver appointed by the court in Nevada had extracted the emails. The receiver countered that any deletion occurred before the server was seized.

In the criminal case, Johnson also had asked the Utah court to order the government to give him access to another hard drive known as the yellow server. The copy provided to the defense did not work, while the government's copy could by perused and searched for possible evidence, he said.

But Assistant U.S. Attorney Robert Lunnen told Warner on Wednesday that the defense had had access to the server. 

Warner said this close to trial the defense had better things to do than "chasing down that rat hole."

Also on Wednesday, U.S. District Judge David Nuffer, who will preside over the trial, turned back a motion to dismiss the case because the government had seized thousands of private emails between Johnson and his attorneys.

Prosecutors had argued that while they had possession of the emails, the prosecution team had not read them or made use of them for their case.