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Attorneys for Marc Sessions Jenson say their client is behind bars and facing felony charges today because he refused to go along with a "shakedown" orchestrated by Utah Attorney General John Swallow and his predecessor, Mark Shurtleff.
In a motion filed Saturday, they argue that Swallow offered to use his influence in the attorney general's office to help get Jenson's proposed $3.5 billion Mount Holly ski and golf resort off the ground. In exchange, the lawyers say, Swallow wanted a million-dollar membership and a cabin at the southern Utah development near Beaver.
They also allege that Shurtleff pitched several deals to Jenson, including asking him to pay $2 million to silence a businessman who had been critical of Jenson's former partner.
When Jenson refused, the court papers say, the attorney general's office clamped down on Jenson who still owed $4.1 million in restitution as part of a 2008 plea on securities charges and filed new felony counts against Jenson and his brother over the Mount Holly development.
Swallow's attorney, Rod Snow, denied the allegations raised by Jenson's legal team and said it is "astounding" that anyone would take seriously claims by "a felon in prison facing new felony charges."
Jenson's attorneys are asking 3rd District Judge Elizabeth Hruby-Mills to disqualify the entire attorney general's office from prosecuting their client in the Mount Holly case, alleging there is a "pervasive and severe" pattern of misconduct and conflicts of interest.
They allege that original charges against Jenson in 2005 were politically driven to appease a Shurtleff donor and that additional charges filed in 2011 were the result of Jenson's refusal to go along with a "shakedown" of their client.
They also allege that, since Jenson began speaking with FBI agents investigating Swallow and Shurtleff and agreeing to media interviews, Jenson's life has been put in danger at the Utah State Prison in an attempt to intimidate or silence him.
Jenson was put into a maximum-security cell with an inmate with a violent history and gang ties. Jenson has since been moved to the Davis County Jail. Other details of his safety behind bars were filed with the court under seal.
Saturday's filing also includes a letter from Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings identifying Swallow, Shurtleff and Shurtleff friend and self-described "fixer" Tim Lawson as targets of their probe.
According to a sworn affidavit by Paul Nelson, who was Jenson's head of security, Rob Stahura told Nelson in 2007 "that the key to resolving matters with the attorney general's office was to donate to Mr. Shurtleff's campaign." Stahura, a longtime friend of Jenson, was a major Shurtleff fundraiser.
"As an example, Mr. Stahura explained how, after he donated to Mr. Shurtleff, the attorney general's office had largely stayed away from his call center business," Nelson said.
Stahura could not be reached Saturday for comment, and Lawson did not respond. Shurtleff has repeatedly and vigorously denied that donors were given any special treatment by his office.
The attorney general's office previously said that Swallow, as a result of the potential conflicts, signed a letter in June 2011 18 months after he became Shurtleff's chief deputy walling him off from involvement in the Jenson case. Shurtleff had signed a similar letter earlier.
While Jenson might not be happy about the attorney general's office putting him in prison, Snow said, Swallow had nothing to do with the 2005 charges against Jenson, nor did he have any role in the new charges filed in 2011.
Jenson's attorneys say that Swallow had told their client that Swallow would "be the next attorney general and that Jenson would need Swallow in that position to work through issues that may arise with respect to the Mount Holly development."
Nelson also recounts how Swallow, whom Nelson said he knew through Republican politics and considered a friend, entered the scene in late 2007, saying he had been promised one of the resort's million-dollar lots and cabins in exchange for working on the project.
The $3.5 billion resort community was envisioned to include a ski slope and a Jack Nicklaus-designed golf course, but the project crumbled and ultimately led to fraud and money-laundering charges by the Utah attorney general's office against Jenson and his brother.
Nelson said he and Swallow discussed Swallow's Mount Holly lot again in the summer of 2009, when Swallow, by then a Shurtleff fundraiser, visited Jenson's luxurious Newport Beach, Calif., villa at Pelican Hill Resort.
At that time, Nelson said, Swallow described the Beaver County lot as a "reward for helping to make Mount Holly a success."
Snow said that, before joining the attorney general's office, Swallow did discuss potentially helping Jenson with legal matters, but that never materialized.
"John was never counsel to Jenson and was not paid a thin dime for legal work or as a contribution to John's campaign," Snow said. Swallow never requested and was never offered a membership in the Mount Holly project, Snow said, and he was not part of Jenson's Mount Holly team.
Nelson said that Swallow described the trip to Pelican Hill as an attempt to meet potential donors for Shurtleff's U.S. Senate campaign which Shurtleff later abandoned and to develop a network of donors for Swallow, who planned to run for attorney general as Shurtleff's "heir apparent."
An affidavit by Eric Pearson, a lawyer working on the Mount Holly project, said he occasionally communicated with Swallow regarding legal strategy on the development, based on his belief that Swallow was an attorney working for Jenson.
Pearson provided emails showing Swallow was included in internal discussions among members of the Mount Holly legal team.
Swallow has acknowledged that he spent time at Jenson's Newport Beach villa in the spring and summer of 2009. Receipts provided by Jenson show Swallow visited on three occasions in May, June and July.
On two of the trips, Swallow accompanied Shurtleff.
The court filing also states that Swallow, as a private attorney, played a key role in negotiating a plea deal with the attorney general's office for Jenson on several felony securities charges he was facing in 2008.
Jenson has said previously that Swallow and Lawson acted as an informal pipeline to Shurtleff. Information would then be passed back through Swallow and Lawson to Jenson's criminal attorney, Greg Skordas, who would communicate with the prosecutors in the attorney general's office.
After a proposed plea deal, which would have led to Jenson receiving probation and paying no restitution, fell apart in May 2008, Swallow, Lawson, Jenson and his attorney, Mark James, met within hours to try to salvage the arrangement, according to Jenson.
Eventually, Jenson agreed to plead no contest to the charges and pay $4.1 million in restitution a sum he never paid, which ultimately landed him behind bars.
Snow acknowledged that Swallow had, at Jenson's request, reviewed some documents leading up to Jenson's 2008 plea in abeyance.
"John now believes that Jenson may have been trying to use him to influence the [attorney general's] office, but that never happened," Snow said. "Jenson never asked for any favors from John, and John would not have done any for him."
In the latest filing, attorneys argue that, after Jenson cut ties with Lawson and rebuffed requests from Swallow and Shurtleff to help raise money for Shurtleff's Senate campaign and invest in a book Shurtleff had written, the attorney general's office sought to have his plea deal rescinded.
It also notes that Jenson refused to pay $2 million that Shurtleff had offered to Utah businessman Darl McBride in exchange for McBride taking down a website that claimed Jenson's former partner, Mark Robbins, owed McBride money. McBride recorded a breakfast meeting with Shurtleff in which the then-attorney general said that Jenson was free on a plea in abeyance and had "every motivation" to come up with the money.
Initially the court refused to revoke the plea deal, but three months later, in August 2011, Jenson was locked up and the additional Mount Holly charges were filed.
Jenson's attorneys also contend that prosecutors have made disparaging comments about Jenson's wife and were spotted "trolling" outside her house.
In response to earlier allegations, Shurtleff said Jenson should not be trusted.
"I was responsible for the investigation, conviction and sentencing of Jenson," Shurtleff said. "He has sworn revenge. I suggest you consider carefully whether to believe a desperate, convicted fraudster."
Nelson also said that Lawson asked him to go to Nelson's relative, Brett Tolman, who at the time was the U.S. attorney for Utah, and urge him to drop an investigation Tolman's office was conducting of Shurtleff.
If he did so, Nelson said, Lawson told him Jenson's restitution would be waived. Nelson said he sent a text to Tolman, but no conversation about the case ever took place.
Jenson's attorney, Marcus Mumford, said the issues raised are the result of careful investigation and the word of several witnesses.
"We anticipate this is the beginning of our efforts to bring issues to the court's attention and seek justice on Mr. Jenson's behalf," he said.
Summary of previous allegations
Utah Attorney General John Swallow and predecessor Mark Shurtleff have come under scrutiny on a number of fronts:
Bribery allegation • Indicted St. George businessman Jeremy Johnson has, at times, accused Swallow of helping to arrange to bribe Senate Majority Leader Harry Reid, D-Nev. Swallow says he only helped Johnson set up a lobbying deal.
Special consideration? • Three Utah businessmen have said Swallow, as a fundraiser for Shurtleff in 2009, suggested that a contribution to Shurtleff's campaign would win them special consideration from the attorney general's office if there were complaints about their operations.
Rules violation? • At least two ethics complaints have been made to the Utah State Bar, including one by the state's former director of consumer protection alleging Swallow violated attorney-client rules by discussing a consumer-protection case with a potential donor and suggesting the target meet with Shurtleff.
Withholding information? • The lieutenant governor's office is in the process of hiring a special counsel to investigate a complaint that Swallow concealed business interests on his candidate financial disclosure forms, including a company central to the Johnson deal.
Posh vacations • Convicted businessman Marc Sessions Jenson said Swallow and Shurtleff took posh vacations to his Newport Beach, Calif., villa on Jenson's dime while he was free on a plea deal with the attorney general's office. During the trips, Jenson said they pressed him for fundraising help and other financial deals.
$2 million solicitation? • Businessman Darl McBride provided a recording of a 2009 breakfast meeting in which Shurtleff offered him $2 million to take down a website criticizing Mark Robbins, Jenson's former business partner. Shurtleff said he could get the money from Jenson because of his plea deal. Jenson said he refused.