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The federal government's proposed gag order against Jeremy Johnson, his friends and his associates is too broad, his attorney argued Tuesday, but if it is enacted, it should apply to prosecutors, too.
Ron Yengich, who represents the indicted St. George businessman, said while he agreed not to make public statements that could substantially affect court proceedings, the government's request is so sweeping it could hinder the constitutional rights of others who post information about the case on the Internet.
In a federal court filing Tuesday, Yengich wrote that "including in such an order all of Johnson's affiliates and potential witnesses serves to invalidate the order as unconstitutionally broad."
The defense lawyer also said any gag order should extend to the U.S. Attorney's Office as well. He cited statements made by former U.S. Attorney Brett Tolman and former federal Judge Paul Cassell, who he implied were speaking on behalf of prosecutors during interviews for news stories.
Prosecutors filed a gag motion last month that said Johnson was "engaged in an ongoing media campaign against the United States Attorney's Office and, in particular, against lead prosecutor Brent Ward, all apparently in an effort to litigate his case publicly rather than in the courtroom."
Johnson faces a felony wire-fraud charge that stems from an investigation by the Federal Trade Commission into his I Works company. A 2010 FTC lawsuit accused Johnson and others of running an illegal online sales operation that led to millions of dollars of unauthorized charges on consumers' credit and debit cards.
Prosecutors said more criminal charges would be forthcoming after a plea bargain fell through in which Johnson was to admit guilt to two additional allegations and accept an 11-year prison term.
That deal unraveled when Johnson and prosecutors could not agree to put in the court record a list of people that the defendant said prosecutors had promised not to indict if he pleaded guilty. For months, Johnson has been waging a campaign on YouTube, through websites, social media and in interviews in which he alleges government misconduct in his criminal case including threats to indict his family and in the FTC lawsuit that is being heard in Las Vegas.
U.S. Magistrate Judge Paul Warner has granted permission for the Utah Association of Criminal Defense Lawyers to file a brief opposing the gag motion.
Executive Director Kent Hart said the main issue is whether the potential jury pool in a Johnson trial could be tainted by his media blitz.
Hart pointed to the extensive publicity before the trial in the kidnapping of Elizabeth Smart in which prosecutors argued the jury pool was so large a panel could be seated who had not been biased by the extensive publicity in that case.
"It seems now that Mr. Johnson has been speaking publicly and saying things prosecutors object to, now they are saying the jury pool could be affected," Hart said. "That seems a bit unfair."
Yengich did not return a phone call seeking further comment on the case. The U.S. Attorney's Office also declined to comment.
Oral arguments on the motion are scheduled for March 12 before Warner in Salt Lake City's federal court.
The Swallow case
Indicted St. George businessman Jeremy Johnson has alleged that Utah's new attorney general, John Swallow, helped broker payoffs to enlist the aid of Senate Majority Leader Harry Reid in derailing a Federal Trade Commission investigation of Johnson's I Works business. Swallow and Reid deny the allegations. The U.S. Attorney's Office is investigating.