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Max D.

Wheeler (3439)
Samuel Alba (0031)
Richard A. Van Wagoner (4690)
Nathanael J. Mitchell (14727)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, 11th Fl., P.O. Box 45000
Salt Lake City, Utah 84145
Telephone: (801) 521-9000
Fax: (801) 363-0400
Email: mdw@scmlaw.com
sa@scmlaw.com
rav@scmlaw.com
njm@scmlaw.com
Attorneys for Defendant Mark L. Shurtleff

IN THE THIRD JUDICIAL DISTRICT COURT


SALT LAKE COUNTY, STATE OF UTAH

STATE OF UTAH,
Plaintiff,

EXHIBIT B TO THE MOTION TO


DISMISS FOR BRADY/GIGLIO AND
SPEEDY TRIAL VIOLATIONS

v.
Case No. 141907720
MARK L. SHURTLEFF,
Judge Elizabeth A. Hruby-Mills
Defendant.

Throughout Mr. Shurtleffs Motion to Dismiss for Brady/Giglio and Speedy Trial
Violations (Brady Motion) Mr. Shurtleff references an unfiled Motion to Suppress
Unlawfully Obtained Warrants and Request for Franks Hearing (Motion to Suppress).

In his Motion to Suppress, Mr. Shurtleff will contend that Agent Nesbitt and members of
the Task Force submitted a series of affidavits containing material omissions, misleading
statements, and outright mistruths to the magistrate in order to secure a series of warrants to
invade the private residence and personal life of Mr. Shurtleff. Agent Nesbitts pattern of
unlawful conduct and abuse of the judicial process not only offended principles of truth and
fairness, but also resulted in a violation of Mr. Shurtleffs constitutional rights under the Fourth
Amendment of the United States Constitution, as articulated in Franks v. Delaware.1
This exhibit contains excerpts from the background section of the unfiled Motion to
Suppress, as well as illustrations of areas in which a search warrant affidavit filed by members of
the Task Force suffered from constitutional deficiencies. As discussed in the Brady Motion, Mr.
Shurtleff seeks certain exculpatory and impeachment material in order to prepare for the
evidentiary hearing and further support his claim that the State violated the Fourth Amendment
through a series of unlawful warrant applications.

In Franks v. Delaware, the United States Supreme Court recognized that the ex parte nature of the warrant
application process could lead to prosecutorial abuse. Franks v. Delaware, 438 U.S. 154, 169-170 (1978). To
protect against this risk, the Court held than individuals are entitled to use an evidentiary hearing to challenge the
validity of a search warrant, if there is a preliminary showing that (i) an affiant in an affidavit supporting a search
warrant made a false statement intentionally, knowingly, or with reckless disregard for the truth, and (ii) the
affidavit is insufficient to support a finding of probable cause after the misstatement is set aside. State v. Nielsen,
727 P.2d 188, 191 (Utah 1986). If a court concludes the government procured a warrant through intentional or
reckless false statements or material omissions, the search warrant must be voided and the fruits of the search
excluded to the same extent as if probable cause was lacking on the face of the warrant. Franks, 438 U.S. at 155.

STATEMENT OF FACTS (SOF)


I.

GENERAL BACKGROUND
A.

Mr. Shurtleff has a long history of public service.

1.

After graduating from Brigham Young University and the University of Utah

College of Law, Mr. Shurtleff served four years in the United States Navy Judge Advocate
Generals Corps. Mr. Shurtleff left the Judge Advocate Generals Corps in 1990.
2.

Over the next twenty years, Mr. Shurtleff served as an Assistant Utah Attorney

General, a Deputy County Attorney for Salt Lake County, and Salt Lake County Commissioner.
3.

In 2000, Mr. Shurtleff was elected Attorney General for the State of Utah.

4.

In 2009, Mr. Shurtleff briefly considered running for the United States Senate.

Mr. Shurtleff, however, ended his Senate campaign later that year in order to devote additional
time to his daughter, who was suffering from personal issues that required family support.
5.

At the conclusion of his third term and after twelve years of service, Mr. Shurtleff

stepped down as Utahs Attorney General in early January 2013.


B.

John Swallows election triggered a legislative and criminal investigation into


Mr. Swallows conduct and campaign financing.

6.

Former Attorney General John E. Swallow took office in January 2013.

7.

Shortly thereafter, the Lieutenant Governors Office and a Special Investigative

Committee created by the Utah House of Representatives retained counsel to investigate public
allegations that Mr. Swallow had engaged in potential illegal, improper, or unethical conduct.2

See Utah House of Representatives, Report of the Special Investigative Committee 19-21 (March 11, 2014).

8.

After conducting its investigation, the Lieutenant Governors Office determined

there was probable cause to believe that Mr. Swallow violated Utahs election law in five
respects during the 2012 Attorney General campaign.3
9.

The Special Committee concluded (1) Mr. Swallow had, in effect, created a pay-

to-play system, in which Mr. Swallow provided access to his office in exchange for campaign
support or contributions;4 and (2) Mr. Swallow had improperly inserted himself into a private
lawsuit against Bank of America in order to protect the interests of a campaign contributor.5
10.

After months of investigation and public controversy, Mr. Swallow resigned from

the office of Attorney General on December 3, 2013.


C.

Confusing Mr. Shurtleffs service as Attorney General with Mr. Swallows


improper campaign finance activities, a joint task force sought and obtained
warrants directed at Mr. Shurtleff.

11.

The Utah State Bureau of Investigation (SBI) and the Federal Bureau of

Investigation (FBI) began working together as part of a joint state-federal task force (Task
Force). Members of the Task Force included Agent Scott Nesbitt from the Utah Department of
Public Safety and FBI Special Agents Jon Isakson and Michelle Pickens.
12.

Between December 11, 2013 and June 2, 2014, members of the Task Force

submitted a series of warrant applications to the Honorable Vernice S. Trease in the Third
District Court, State of Utah. Acting in the capacity of a magistrate and relying on the Task
Forces representations, Judge Trease issued several warrants directly affecting Mr. Shurtleff.

Id. at 29.

Id. at 6, 38.

Id. at 103.

a.

On or about December 11, 2013, Agent Nesbitt sought and obtained Warrant
214.

Using Warrant 214, investigators executed a search of Timothy

Lawsons home for electronic devices, tax documents, and correspondence,


including communications with Mr. Shurtleff.

Deputy Salt Lake County

District Attorney Jeff Hall reviewed and approved Agent Nesbitts affidavit
and the proposed warrant.
b.

On or about December 11, 2013, Agent Nesbitt sought and obtained Warrant
216, which permitted seizure of a broad range of documents from Google, Inc.
and Google Payments Corporation, including communications sent and
received from Mr. Shurtleffs personal email account for a four-year period.
Deputy Salt Lake County District Attorney Nicholas DAlesandro reviewed
and approved Agent Nesbitts affidavit and the proposed warrant application.

c.

On or about June 4, 2014, Agent Nesbitt sought and obtained Warrant 158,
which permitted a search of Mr. Shurtleffs private residence. Deputy Salt
Lake County District Attorney Fred Burmester reviewed and approved Agent
Nesbitts application and the proposed warrant.

d.

Agent Nesbitt also applied for and obtained a series of warrants directed at
obtaining documents and evidence from third parties.

e.

Agent Nesbitts warrants required production of a broad range of documents


without a cognizable limit on subject matter. In recognition of the warrants
breadth, Agent Nesbitt submitted several supplemental affidavits averring that

a taint team would be established to review and identify relevant


documents.
13.

Agent Nesbitt subscribed and swor[e] to each affidavit in support of a search

warrant. See Utah R. Crim. P. 40(c)(1).


14.

Members of the Salt Lake District Attorneys Office reviewed and approved each

of the warrants and affidavits for submission to the court.


15.

As discussed below, Agent Nesbitt and members of the Task Force used false and

misleading information throughout the affidavits submitted to the Magistrate.


II.

THE TASK FORCE MISLED THE COURT ABOUT MR. SHURTLEFFS ROLE
IN MARC S. JENSONS CRIMINAL PROSECUTION IN 2005-2008.
16.

In pursuit of Mr. Shurtleff, the Task Force relied heavily on mischaracterizations

of Mr. Shurtleffs management of the Attorney Generals Office. The Task Forces secondguessing of Mr. Shurtleffs management centered on his exercise of oversight in a controversial,
complex, and well-publicized criminal casethe prosecution of Marc S. Jenson.
17.

On August 10, 2005, the Attorney Generals Office charged Mr. Jenson with

several fraud-related crimes for acts committed in 2000.


18.

Mr. Jenson retained Greg Skordas, a prominent defense attorney who had run

against Mr. Shurtleff in the 2004 election.


19.

According to FBI records, throughout the criminal case, several prominent

members of the community attempted to use political influence and personal pressure in the
hopes of securing a dismissal of the charges against Mr. Jenson.
20.

Individuals who attempted to influence the criminal prosecution of Mr. Jenson

include the following: Brent Hatch, the son of U.S. Senator Orrin Hatch; Mark James, a
6

prominent Salt Lake City attorney; several leaders of the Church of Jesus Christ of Latter Day
Saints; New York investors in Mr. Jensons investment projects; Steve Hassler, a former
fundraiser; several members of Mr. Jensons family; and Mr. Jenson himself.
21.

At one point, Mr. Jensons Director of Security for the Mount Holly development

project, Paul Nelson, who also invested in Mr. Jensons business, contacted victims in the
pending criminal case for the purpose of interfering with the investigation and prosecution.
22.

Mr. Nelson also sent several emails to Mr. Shurtleff, insisting on Mr. Jensons

innocence and requesting dismissal of charges.


23.

In response, Mr. Shurtleff referred Mr. Nelson to one of the prosecutors assigned

to the case and insisted negotiations go through Mr. Jensons counsel.


24.

Despite pressure from many prominent members of the community, Mr. Shurtleff

repeatedly refused to dismiss the charges against Mr. Jenson.


A.

Mr. Shurtleff instigated and provided assistance to the FBIs investigation of


attempts to improperly influence Mr. Jensons criminal prosecution.

25.

Efforts to improperly influence the prosecution of Mr. Jenson reached new lows

in 2007, approximately two years after Mr. Shurtleffs office filed the charges.
26.

In September 2007, Mr. Shurtleff was hospitalized for injuries that he received in

a serious motorcycle accident. Unannounced and uninvited, Mr. Nelson visited Mr. Shurtleffs
hospital room. Finding Mr. Shurtleff heavily sedated, Mr. Nelson informed Mr. Shurtleff that
Mr. Jenson and his friends could raise hundreds of thousands of campaign dollars if Mr.
Shurtleff would dismiss the charges against Mr. Jenson.
27.

At one point in time, Mr. Nelson threatened Mr. Shurtleffs political future if he

failed to dismiss Mr. Jensons case.

Specifically, Mr. Nelson indicated that Mr. Jensons


7

investors in New York would raise money against Mr. Shurtleff in the 2008 election, and that
Mr. Skordas and Scott Reed, a prosecutor assigned to the case, were conspiring to mount a
campaign against Mr. Shurtleff if the charges were not dismissed.
28.

Shortly after Mr. Nelsons visit, Mr. Shurtleff reported Mr. Nelsons attempt to

bribe and coerce Mr. Shurtleff to the FBI through his Chief of Investigation, Ken Wallentine.
29.

After Mr. Shurtleff reported Mr. Nelsons attempt to improperly influence him in

the hospital, the United States Attorneys Office for the District of Utah and the FBI opened a
formal criminal investigation of Mr. Nelson and Mr. Jenson that included potential federal
charges of Soliciting a Bribe, Interstate Communications, and Wire Fraud.
30.

Assistant United States Attorney Barbara Bearnson instructed that further

communications between Mr. Shurtleff and Mr. Nelson be recorded. The FBI also informed Mr.
Shurtleff that he was a victim and that federal authorities should conduct the investigation.
31.

Mr. Shurtleff participated as the FBIs confidential informant in a sting operation

that resulted in two recorded meetings and the collection of more than 140 text messages.
32.

As part of the sting operation, Mr. Shurtleff provided the FBI with text messages

between Mr. Shurtleff and Mr. Nelson, Mr. Jenson, and Mr. Skordas. Mr. Shurtleff also sent
several text messages to Mr. Nelson, Mr. Jenson, and Mr. Skordas with the knowledge and, at
times, direction of the FBI.
33.

As part of the sting operation, Mr. Shurtleff worked with Special Agent Michelle

Pickens to obtain recorded statements by Mr. Nelson.


a.

At her request, Mr. Shurtleff contacted Mr. Nelson.

b.

At SA Pickenss direction, Mr. Shurtleff informed Mr. Nelson that his


memory was fuzzy about the hospital visit, but that he believed Mr.
Nelson had offered to raise campaign funds.

c.

Mr. Shurtleff invited Mr. Nelson to his parents home, where he was
recuperating, and asked him to repeat the offer.6

34.

With Mr. Shurtleffs participation and assistance, the FBI installed a camera in a

clock located in the living room. When Mr. Nelson visited Mr. Shurtleff, SA Pickens and other
FBI personnel waited for the recording in another room in the home.

The FBI later

congratulated and thanked Mr. Shurtleff for his role in the sting operation.
35.

Approximately one week later, Mr. Jenson and Mr. Nelson appeared uninvited in

Mr. Shurtleffs hospital room. Mr. Shurtleff again contacted SA Pickens. The FBI provided Mr.
Shurtleff with a digital recording device and asked him to record Mr. Nelson.
36.

Using the device, Mr. Shurtleff obtained a second recording of Mr. Nelsons

attempts to improperly influence Mr. Jensons prosecution. To assist in the federal investigation,
Mr. Shurtleff gave the recording to the FBI.
37.

In summary, Mr. Shurtleff cooperated fully with the FBIs efforts to investigate

possible bribery of an elected official by Mr. Jenson and Mr. Nelson. Far from being complicit
in Mr. Jensons scheme or surreptitiously expressing a willingness to accept money or avoid
threats made against him in exchange for dismissal of criminal charges--bribery, Mr. Shurtleff
actively informed authorities of efforts to improperly influence a pending criminal case and then
played a critical role as a confidential informant in a subsequent investigation.
6

To avoid entrapment, SA Pickens coached Mr. Shurtleff to simply repeat on camera that he could not remember
exactly what Mr. Nelson had said to him while in the hospital.

38.

Months later, Mr. Shurtleff reported the outcome of the States prosecution of Mr.

Jenson to SA Pickens.
39.

Throughout the sting operation and subsequent investigation of Mr. Jenson and

Mr. Nelson, Mr. Shurtleff refused to dismiss Mr. Jensons criminal case.
B.

Mr. Shurtleff did not improperly influence plea negotiations in Mr. Jensons
criminal case. Instead, Mr. Shurtleff insisted that prosecutors reach a fair
resolution that adequately protected victims of Mr. Jensons crimes.

40.

As indicated above, the prosecution of Mr. Jenson was a high profile case. At

various points in time, Mr. Shurtleff, Chief Deputy Attorney General Kirk Torgensen, then
Assistant Attorney General Charlene Barlow,7 and Assistant Attorney General Scott Reed,
among others, participated in the evaluation of the case, its prosecution, and plea negotiations.
41.

Correspondence between attorneys of the Attorney Generals Office demonstrates

that Mr. Shurtleff participated in Mr. Jensons prosecution at early stages of the criminal case, in
part because the case involved serious allegations and millions of dollars in restitution.
42.

Mr. Reed represented that Mr. Shurtleff was a hands-on Attorney General who

would involve himself in cases, even though some line prosecutors believed that he should not be
involved. Mr. Reed was able to identify specific cases in which Mr. Shurtleff stuck his nose.
43.

On April 30, 2007, Mr. Shurtleff sent an email to other prosecutors in which he

informed them he had bad feelings about Mr. Nelson, and he was interested in learning the
details of his intimidation of one of our witnesses.

In October 2010, Ms. Barlow became the Honorable Charlene Barlow of the Third District Court for the State of
Utah. Because her participation in the relevant events predated her appointment to the bench, Ms. Barlow is referred
to in a private capacity throughout this exhibit.

10

44.

On August 16, 2007, after receiving significant pressure from Mr. Nelson and Mr.

Jenson, Mr. Shurtleff emailed Ms. Barlow, Mr. Reed, and Mr. Torgensen to inform them that a
personal friend was offered money to sway the criminal case. Mr. Shurtleff wrote: Shouldnt it
be a crime to offer people money to try to get a prosecutor to dismiss a case?
45.

On August 25, 2007, Mr. Shurtleff circulated a draft email directed at Mr. Nelson

to the prosecuting team. In the draft email, Mr. Shurtleff wrote: As you know, I and several
prosecutors and investigators in our office, [sic] have reviewed all of the information and
allegations provided our office regarding Mr. Jensens [sic] alleged victims and we have
concluded that our prosecuorial [sic] standard has been met and continues in this case: a strong
likelihood of meeting our burden of proof beyond a reasonable doubt.
46.

As early as September 28, 2007, Ms. Barlow sent an internal email in which she

stated: Mr. Jenson can plead guilty to counts 2 and 6 as amended to third degree felonies; the
State would then dismiss the remaining counts. Mr. Jenson would be required to make complete
restitution of $4.1 million.
47.

Although Ms. Barlow informed other prosecutors that she was unwilling to offer a

plea in abeyance, FBI records indicate that Ms. Barlow did not think that it was unethical that
[Mr.] Shurtleff wanted a plea in abeyance instead of a trial. During an FBI interview, Ms.
Barlow indicated that the witnesses in Mr. Jensons criminal case were not the best possible
witnesses since they were shady, but that was common for victims in this type of case.
48.

On January 10, 2008, Mr. Reed sent Mr. Shurtleff a draft of a letter to Mr.

Jensons counsel. In the draft letter, Mr. Reed wrote: Mr. Jenson will pay restitution to Michael
Bodell and Morris Ebeling in an amount which shall be agreed upon and stated in the pleadings
11

submitted to the court prior to the entry and acceptance of the plea . . . . Frankly, I have strong
personal reservations regarding this proposal. It is the direction of the Attorney General that if
we can resolve this case under these terms and conditions, we will consider it an acceptable
outcome. Mr. Shurtleff approved the demand for full restitution.
49.

On February 12, 2008, Mr. Reed sent an email discussing restitution to Mr.

Jensons counsel. Mr. Reed proposed limiting Mr. Jensons total restitution to $2.5 million, in
part by removing $1.6 million in restitution to Michael Bodell, who was one of the victims of
Mr. Jensons fraudulent activities.
50.

On February 29, 2008, Mr. Shurtleff received an email from Timothy Lawson that

contained bullet point proposals relating to Mr. Jensons plea negotiations.


a.

At the time of the proposal, Mr. Shurtleff continued to assist with and
participate in the federal bribery investigation of Mr. Jenson and Mr. Nelson.

b.

Within minutes of receiving the email, Mr. Shurtleff forwarded Mr. Lawsons
proposal to Mr. Reed and Mr. Torgensen.

c.

Mr. Torgensen responded: Why are we dealing with [Mr. Lawson]? We


cannot ethically deal [with] this guy outside of [Mr.] Jensons [sic] counsel.
This is inappropriate for [Mr.] Lawson to be doing this. I think our deal
speaks for itself he can take it or leave it. . . . Please advise.

d.

Mr. Shurtleff responded: Thats what I told him. Apparently [Mr. Jenson]
has in-house or civil attorney working [Mr. Lawson]. I just sent it to you
guys so you would know whats going on.

12

e.

Mr. Shurtleffs response does not contain any instruction that prosecutors
adopt or incorporate the recommendations in Mr. Lawsons email.

51.

On February 29, 2008, Mr. Skordas requested that Mr. Jenson be allowed to

continue working on his Mount Holly project during the plea in abeyance period. Mr. Shurtleff
was not copied on the email.
52.

On March 3, 2008, Mr. Reed responded: Well give you Mt. Holly so we know

what to keep an eye on during the PIA period. The email does not contain any indication that
Mr. Reed consulted with Mr. Shurtleff about Mr. Jensons participation in future projects.
53.

On March 11, 2008, Mr. Shurtleff emailed Mr. Reed and Mr. Torgensen to

convey concerns about Michael Bodell, a victim in the case. Mr. Shurtleff wrote: [Mr.] Bodell
called again today and left a voice mail begging for a call from me explaining where we are and
what we are offering [Mr.] Jensen [sic], why we arent including restitution for him, and what his
rights are to attend and possibly object at the hearing. Can one of you please call him?
54.

In the midst of the federal investigation into Mr. Nelson and Mr. Jenson, Mr.

Shurtleff informed Mr. Torgensen and Mr. Reed about his concerns with obtaining a conviction.
55.

Prosecutors within the Attorney Generals Office did not agree on the strength of

the case against Mr. Jenson. On several occasions, Mr. Reed, in the presence of Ms. Barlow,
told Mr. Shurtleff that the case against Mr. Jenson was good, not great, but prosecutable. Ms.
Barlow, in contrast, insisted at the time that it was a strong case, despite potential issues arising
out of the credibility of witnesses.
56.

Based on his understanding of the case, Mr. Shurtleff had significant concerns

about the strength of the testimony of one of alleged victims, Mark Robbins.
13

57.

Mr. Robbins was one of Ms. Barlows primary witnesses.

According to

interviews and recordings in the possession of the FBI, Mr. Robbins actively participated in Mr.
Jensons fraudulent scheme and defrauded investors out of millions.
58.

Mr. Reed eventually took a primary lead in negotiating a plea with Mr. Jensons

counsel, including the terms and conditions of the plea in abeyance.


59.

Mr. Reed presented a plea in abeyance offer to Mr. Skordas and Mr. Jenson that

did not require payment of restitution. Mr. Reed later confirmed that the exclusion of restitution
was not devised by Mr. Shurtleff, but rather the product of extensive negotiations and an effort to
take into account developments in a related civil case.
60.

After receiving notice of objections from victims, who also appeared at a hearing,

the Honorable Robin W. Reese rejected the plea in abeyance proposal submitted by Mr. Reed
and Mr. Skordas. Judge Reese instructed the parties to send future plea proposals to victims.
61.

Mr. Reed and Mr. Skordas negotiated a second plea in abeyance. Under the terms

of the plea offer, Mr. Jenson agreed to pay full restitution of $4,100,000. After agreeing to the
terms of plea, Mr. Jenson pled no contest on May 29, 2008.
62.

Throughout plea negotiations, Mr. Shurtleff insisted, on several occasions, that

any plea should require that Mr. Jenson must pay full restitution to victims.
63.

Mr. Shurtleff believed that the structure of the plea deal increased the likelihood

that Mr. Jensons victims would receive restitution, because the only way that Mr. Jenson could
avoid a felony record and possible incarceration was to compensate the victims of his crimes.
Based on his experience, Mr. Shurtleff understood that the likelihood of victims receiving
compensation if the case went to a jury was remote, at best.
14

64.

Mr. Shurtleff was aware that several of the witnesses against Mr. Jenson would be

subject to impeachment, including Mr. Robbins, which undermined the likelihood of a successful
conviction in the absence of a plea agreement.
65.

Mr. Shurtleff fully disclosed the plea offer to SA Pickens of the FBI, along with

an explanation of why the Attorney Generals extended a plea in abeyance for three years that
required payment of full restitution to Mr. Jensens victims. The plea in abeyance was entered
while the bribery sting operation targeting Mr. Jenson and Mr. Nelson was still underway and
well before federal authorities made their charging decision against Mr. Jenson and Mr. Nelson
in connection with their scheme.
66.

Months after the plea, the Department of Justice declined to prosecute Mr. Jenson

and Mr. Nelson for attempted bribery and related crimes on November 19, 2008.
67.

According to federal authorities, the bribery scheme was not prosecutable because

Mr. Nelson had qualified his offers with language that Mr. Jenson was innocent and the funds
would be available to Mr. Shurtleff if he did the right thing. The federal authorities did not
specifically address Mr. Nelsons threats against Mr. Shurtleff.
68.

Unfortunately for the victims of his crimes, Mr. Jenson failed to pay any

restitution over the next three years. In 2011, Judge Reese sentenced Mr. Jenson to up to ten
years in state prison for failing to abide by the terms of the plea deal.
69.

Mr. Jenson later attempted to orchestrate a scheme from prison by directing his

former victims to tell the Utah Board of Pardons and Parole (Board) that restitution had or
would be paid.

Mr. Jenson even received a release, based on his (untruthful) claim that

15

restitution had been paid. Following a subsequent hearing, it was concluded that Jenson had not,
despite his claims to the contrary, in fact paid any of the $4.1 million in restitution.
C.

The Task Force intentionally mischaracterized and omitted material facts


relating to Mr. Jenson prosecution in order to obtain search warrants.

70.

Agent Nesbitt and the Salt Lake District Attorneys Office had access to a

complete history of Mr. Shurtleffs participation in the sting operation.


a.

Agent Nesbitt interviewed SA Isakson and SA Pickens before he filed the


affidavits in support of search warrants.

b.

SA Isakson and SA Pickens possessed personal knowledge about the


investigation into Mr. Jensons and Mr. Nelsons conduct.

c.

SA Isakson participated in the preparation of and signed, under oath, the


probable cause statement attached to the Original Information.

d.

Agent Nesbitt and the Salt Lake District Attorneys Office had access to
the FBIs internal documents, which not only identified Mr. Shurtleff as a
victim and confidential informant in the federal investigation, but also
contained correspondence and recordings that undermined the Task
Forces narrative of Mr. Nelsons scheme and plea negotiations.

e.

Based on discovery disclosures and the language of the affidavits, Agent


Nesbitt and the Salt Lake District Attorneys Office appear to have had
access to FBI records and extensive emails surrounding Mr. Jensons plea
negotiations.

16

71.

Agent Nesbitt and the Salt Lake District Attorneys Office omitted critical

information about Mr. Shurtleffs collaborative role in a federal investigation of Mr. Jenson and
Mr. Nelson. Examples of material omissions include the following:
a.

As discussed above, rather than accept campaign contributions, Mr.


Shurtleff and the FBI cooperated, collaborated, and participated in an
investigation of unlawful efforts to influence Mr. Jensons criminal case.

b.

Mr. Shurtleff himself provided recorded conversations and materials to the


FBI, which materials form the basis of the Task Forces affidavits.

c.

Mr. Shurtleff notified the FBI of the terms of the plea in abeyance.

d.

Ms. Barlow informed the FBI that the witnesses in Mr. Jensons
prosecution were not the best possible witnesses since they were shady,
but that was common for victims in this type of case.

e.

Agent Nesbitt also omitted that Mr. Nelson may have attempted to contact
Ms. Barlow to discuss prosecution of the case.

f.

Agent Nesbitt consistently downplayed the role Mr. Reed played in


negotiations, and his relationship to Mr. Skordas.

g.

Agent Nesbitt failed to mention that victims of Mr. Jensons fraudulent


scheme also opposed Mr. Reeds initial settlement proposal.

72.

Agent Nesbitt intentionally misconstrued events surrounding a key email. Agent

Nesbitt knew that Mr. Shurtleff forwarded the email to Mr. Reed and Mr. Torgensen, after which
Mr. Shurtleff informed other prosecutors that Mr. Lawsons email was inappropriate.

17

73.

Agent Barlow attempts to create misleading and negative inferences based on

rumors, speculation, and unsubstantiated news articles. For example, Agent Nesbitt fails to
mention that Ms. Barlow conceded that she had never heard anything related to these rumors
[associated with an article] from [Mr.] Shurtleff.
74.

Agent Nesbitt and the Task Force failed to inform the magistrate that Mr.

Shurtleff was unwilling to dismiss charges against Mr. Jenson, but rather insisted that any plea
agreement include millions of dollars in restitution to victims of Mr. Jensons crimes.
75.

Agent Nesbitt and the Task Force misrepresented the facts and circumstances

surrounding negotiation of the plea deal by inaccurately attributing the terms and language of the
plea in abeyance to Mr. Shurtleff and failing to disclose that Mr. Shurtleff requested that full
restitution be paid to victims throughout the course of negotiations.
76.

Agent Nesbitt lacked any direct evidence that Mr. Jenson or related persons or

entities contributed to Mr. Shurtleffs campaign as a purported quid pro quo for anything, let
alone the dismissal of the criminal charges against Mr. Jenson.
77.

Agent Nesbitt failed to mention that Mr. Shurtleff denied possessing any

knowledge, at the time, that Mr. Jenson may have surreptitiously contributed to the cost of a trip
to Pelican Hills approximately one year after the plea arrangement.
78.

Agent Nesbitt fails to highlight that his primary witness, Mr. Jenson, was serving

a lengthy prison sentence at the time of his interview with members of the Task Force, or that
Mr. Jenson harbored ill-will and was substantially biased against Mr. Shurtleff.

18

III.

THE TASK FORCE FABRICATED AN IMPROPER CONNECTION BETWEEN


MR. SHURTLEFF AND MENTORING OF AMERICA.8
79.

Mentoring of America, LLC was a Utah-based call-center company. On or about

November 1, 2008, Mentoring of America contributed $2,500 to Mr. Shurtleffs campaign.


80.

Mentoring of America was but one of hundreds of individuals or entities that

contributed to Mr. Shurtleffs 2008 campaign.


81.

In affidavits in support of search warrants, Agents Nesbitt and the Salt Lake

District Attorneys Office distorted the relationship between Mr. Shurtleff and Mentoring of
America. Examples of intentionally or recklessly false statements include the following:
a.

The affidavits misrepresented the timing and amount of a donation from


Mentoring of America to Mr. Shurtleffs re-election campaign in
November 2008.

b.

The affidavits misrepresented the Division of Consumer Protections


investigation of Mentoring of Americathe affiants fail to mention the
fact that the investigation into Mentoring of America had concluded two
years earlier.

82.

Similarly, Agent Nesbitt and the Salt Lake District Attorneys Office, without any

evidence in support of such a connection, improperly suggested there was a link between
Mentoring of Americans lawful campaign contribution and Mr. Jensons criminal case.
a.

The affidavits use misleading phrases, such as not long after and
around this time, to falsely draw a temporal connection between

Affidavit 158, 15-17.

19

Mentoring of Americas campaign contributions and plea negotiation in


Mr. Jensons case.
b.

The affidavits fail to discuss the fact that the Mentoring of America
contribution occurred months after (i) Mr. Shurtleff had rejected multiple
requests to dismiss the criminal charges against Mr. Jenson and (ii) Mr.
Shurtleff had alerted federal authorities regarding improper efforts to
influence Mr. Jensons criminal case.

c.

When discussing the relationship between Tim Lawson and Mr. Shurtleff,
Agent Nesbitt failed to disclose that Mr. Shurtleff had described Mr.
Lawson as a name dropper and that he had asked Mr. Lawson not use
their relationship.

d.

The affidavit fails to disclose that Mr. Lawson was not employed by Mr.
Jenson until a later date, believed to be January 2009, months after the
Mentoring of Americas contribution.

83.

As discussed above, Agent Nesbitt and the Salt Lake District Attorneys Office

had access to information necessary to accurately represent the nature of the relationship
between Mentoring of America and Mr. Shurtleff.
a.

For example, Agent Nesbitt could have easily accessed campaign finance
records to verify the amount and timing of contributions.

b.

Similarly, Agent Nesbitt could have easily interviewed MOA executives,


whom he references by name in the affidavits, to verify whether there was
a connection between the company and Mr. Jenson.
20

84.

Instead, Agent Nesbitt and the Salt Lake District Attorneys Office included in the

affidavits misleading statements about Mentoring of America for the express purpose of
furthering a false narrative about Mr. Shurtleffs tenure as Attorney General.
85.

Agent Nesbitt compounded this error by omitting or misconstruing the timeline of

the allegations surrounding Mentoring of America for the purpose of suggesting improper
conduct.
IV.

AGENT NESBITT AND THE TASK FORCE MISLED THE COURT ABOUT THE
MEETING AT MIMIS CAF.
A.

While serving as Attorney General, Mr. Shurtleff met with Darl McBride to
discuss his concerns about possible criminal activity.

86.

Darl McBride, a Utah-based entrepreneur once described as the most hated man

in high tech, emailed Mark Shurtleff and requested a meeting. After some delay caused by a
missed email, Mr. Shurtleff agreed to meet with Mr. McBride at his request.
87.

On May 8, 2009, Mr. McBride met with Mr. Shurtleff at Mimis Caf, a

restaurant located in Sandy, Utah.

Mr. McBride controlled the subject matter of the

conversation, which he surreptitiously recorded without Mr. Shurtleffs knowledge or consent.


88.

As indicated in the Task Forces transcript of its enhanced recording, Mr.

Shurtleff rarely spoke during the course of the meeting. For most of the meeting, Mr. Shurtleff
asked questions to clarify Mr. McBrides narrative of events. In a few instances, Mr. Shurtleff
explained the background of Mr. Jensons prosecution and his relationship to Timothy Lawson.
89.

Mr. McBride spent the majority of the meeting explaining how he had lost

substantial funds investing in a fraudulent scheme perpetrated by Mark Robbins, an entrepreneur


who had connections to Mr. Jenson. Mr. McBride accused Mr. Robbins of perpetrating a Ponzi

21

scheme. Mr. McBride claimed that he had taken out loans to pay Mr. Robbins, and that Mr.
Robbins promised to pay back Mr. McBride but failed to do so. Mr. McBride further claimed
that Mr. Robbins had perpetrated similar fraudulent schemes on other investors.
90.

In 2008, Mr. Robbins claimed that he was a victim of the fraudulent scheme at the

heart of Mr. Jensons criminal case. Prior to Mr. Jensons plea in abeyance, Ms. Barlow and
prosecutors intended to use Mr. Robbins as a key witness in Mr. Jensons trial.
91.

Mr. McBride informed Mr. Shurtleff that he had been contacted by Mr. Lawson.

According to Mr. McBride, Mr. Lawson offered to assist in recovering funds paid to Mr.
McBride for a 30% commission. After Mr. McBride questioned Mr. Lawsons connection to a
bad guy like Mr. Robbins, Mr. Lawson indicated that he carried three concealed weapons and
had Polynesian friends. Mr. McBride stated that Mr. Lawson told him that he needed to deal
with it my way or . . . theres going to be consequences to pay. Mr. Lawson also allegedly
threatened to turn over to prosecutors in Chicago and New York information about Mr.
McBrides criminal conduct during a prior civil dispute with IBM.
92.

Mr. McBride stated that he had received a text message from Mr. Lawson about

setting the twelfth richest man in the world against him after Mr. McBride filed a civil action
against Mr. Robbins.
93.

Mr. Shurtleff listened carefully to Mr. McBrides allegations.

94.

In response to Mr. McBrides concerns, Mr. Shurtleff stated that Mr. Lawson was

a talker and a name dropper. Mr. Shurtleff indicated that he had concerns about how Mr.
Lawson had used Mr. Shurtleffs name. Mr. Shurtleff informed Mr. McBride that he had told

22

Mr. Lawson not to promise things on Mr. Shurtleffs behalf, especially because federal
authorities were pursuing other individuals for engaging in unlawful pay to play schemes.
95.

Mr. Shurtleff informed Mr. McBride that Mr. Jenson and Mr. Robbins had been

partners, and that Mr. Jenson was currently subject to a three-year plea in abeyance.
96.

Mr. Shurtleff indicated that Mr. Robbins was one of the witnesses in the criminal

case against Mr. Jenson.

Mr. Shurtleff informed Mr. McBride that issues relating to the

credibility of Mr. Robbins undermined the strength of the criminal case against Mr. Jenson.
97.

Mr. Lawson had no authority to make representations to Mr. McBride on behalf

of Mr. Shurtleff. Prior to the meeting, Mr. Shurtleff lacked specific information regarding Mr.
Lawsons communications with Mr. McBride or the purported threats.
98.

Mr. Shurtleff agreed to look into Mr. McBrides concerns.

99.

Unlike Mr. Lawson, Mr. Shurtleff did not attempt to discourage Mr. McBrides

pursuit of Mr. Robbins. To the contrary, Mr. Shurtleff encouraged Mr. McBride to pursue a
variety of different forms of legal relief, including additional lawsuits against Mr. Robbins.
100.

Mr. Shurtleff had no financial or personal interest in resolving the dispute

between the two businessmen in favor of Mr. Robbins.


101.

Mr. Shurtleff lacked leverage to cause Mr. Jenson to pay Mr. McBride, because

the court ordered payment of restitution to a class of identified victims, which did not include
Mr. McBride or Mr. Robbins.
102.

Mr. McBride later brought a civil case in the Third Judicial District Court, State

of Utah, against Mr. Shurtleff for acts that allegedly occurred in 2012.

23

B.

Agent Nesbitt and the Task Force misrepresented the Mimis Caf meeting
and misled the court for the purpose of obtaining warrants.

103.

Agent Nesbitt and the Task Force misrepresented the conversation that occurred

at the Mimis Caf meeting in the hopes of obtaining warrants. Among other things, the
affidavits contain intentional or reckless material statements about the following subjects:
a.

The affidavits erroneously suggested Mr. Shurtleff initiated contact with Mr.
McBride, when in fact Mr. McBride initiated contact with Mr. Shurtleff.

b.

At one point, Mr. Shurtleff appears to have agreed with Mr. McBride that a
harsh response may be appropriate, a fact which Agent Nesbitt misconstrued
in his affidavits.

c.

Although Mr. Shurtleff repeated Mr. McBrides characterization of Mr.


Robbinss activities as a Ponzi scheme, an accurate reading of the transcript
demonstrates that Mr. Shurtleff merely used the term Ponzi in response to
Mr. McBrides statements.

During the meeting, Mr. Shurtleff never

confirmed that Mr. Robbins was in fact engaged in such criminal activity.
d.

Contrary to the affidavits, there is no indication that Mr. Shurtleff offered


anything to Mr. McBride to remove his Skyline Cowboys website.

e.

Contrary to the affidavits, there is no indication that Mr. Shurtleff expressed


concerns that Mr. Robbins would be unable to complete deals because of Mr.
McBrides Skyline Cowboys website.

f.

Contrary to the affidavits, there is no indication in the audio recording or the


enhanced transcript that Mr. Shurtleff made several of the statements
contained in quotation marks in the affidavits.
24

g.

For example, Agent Nesbitt appeared to suggest that Mr. Shurtleff told Mr.
McBride: But you got your money, you got to promise us there cant be
anything else from you. You know, it just straight up. But there are either
no such statements included in the Task Forces enhanced transcript of the
recording, or Agent Nesbitt significantly misrepresented the import of the
statement.

h.

Similarly, Agent Nesbitt misrepresented Mr. Shurtleffs offer of assistance.

i.

By using quotation marks, Agent Nesbitt and members of the Task Force
intentionally or recklessly misquoted the tape and enhanced transcript of the
enhanced recording.

104.

Agent Nesbitt and the Task Force also materially omitted key portions of the

enhanced transcript in an effort to mislead the court into issuing warrants. Among other things,
the Task Force failed to include the following material information.
a.

The affidavits fail to mention that Mr. Shurtleff described Mr. Lawson as a
name dropper and the fact that Mr. Shurtleff appears to have disavowed any
knowledge or participation in Mr. Lawsons activities.

b.

The affidavits fail to mention that Mr. Shurtleff insisted that Mr. Lawson did
not represent his interests, and that he had been instructed to stop representing
that he could resolve issues through his connection to Mr. Shurtleff.

c.

The affidavits fail to mention that Mr. Shurtleff never authorized or condoned
Mr. Lawsons conduct or representations to Mr. McBride.

25

105.

Agent Nesbitt either intentionally or recklessly omitted information obtained from

Mr. Robbins, who denied owing money to Mr. McBride and denied any allegation that Mr.
Shurtleff approached Mr. McBride on his behalf.
106.

Agent Nesbitt possessed information that Mr. Shurtleff denied that Mr. Lawson

worked on his behalf. Despite that fact, he recklessly, intentionally, and misleadingly suggested
throughout search warrant affidavits that Mr. Lawson worked for Mr. Shurtleff without sufficient
supporting proof.
107.

Finally, Agent Nesbitt misconstrued the context of the conversation and Mr.

Shurtleffs role in the conversation.


V.

AGENT NESBITT AND THE TASK FORCE USED FALSE STATEMENTS AND
OMISSIONS RELATING TO JEREMY JOHNSON IN THE AFFIDAVITS.
108.

Throughout the affidavits, Agent Nesbitt uses misleading inferences and

omissions relating to Jeremy Johnson, iWorks, and Mr. Swallows own campaign activities in an
effort to improperly incriminate Mr. Shurtleff and manufacture probable cause.
A.

Mr. Shurtleff has never denied that he and Mr. Johnson participated in and
sponsored private charitable initiatives.

109.

In a series of interviews with the FBI, Mr. Shurtleff discussed Mr. Johnson.

110.

Mr. Shurtleff brought federal investigators information about possible misconduct

by Mr. Swallow and Mr. Johnson in late 2012, which was months before the Lieutenant
Governors Office or the Utah Legislature began investigating Mr. Swallow.
111.

Years before federal investigators pursued regulatory and criminal actions against

Mr. Johnson, Mr. Shurtleff and Mr. Johnson participated in supporting two private charitable
organizations: the Utah Meth Cops Project, which offered treatment to police officers exposed to

26

hazardous chemicals during drug raids, and The Lost Boys, an organization that offers refuge to
young men without homes. Throughout the affidavits, Agent Nesbitt deliberately confuses
fundraising or assistance with fundraising for the charitable projects with political fundraising.
112.

Agent Nesbitt and members of the Task Force failed to disclose that the Utah

Division of Consumer Protection resolved its investigation into Jeremy Johnson and iWorks with
a settlement agreement dated October 1, 2003 and June 8, 2005, several years before Mr.
Shurtleff met Mr. Johnson.
113.

Agent Nesbitt and members of the Task Force failed to provide any supporting

evidence connecting Mr. Johnson to Mr. Shurtleff and improper conduct following his departure
from office. Despite the absence of a logical connection, Agent Nesbitt continuously emphasizes
the relationship between Mr. Shurtleff and Mr. Johnson in a manner that is misleading and
inaccurate.
114.

Agent Nesbitt deliberately omits a key piece of an interview with Mr. Johnson, in

which Mr. Johnson appears to have stated: [T]here was no quid pro quo with Mark Shurtleff.
VI.

AGENT NESBITT AND THE TASK FORCE MISLED THE MAGISTRATE IN A


SERIES OF MISCELLANEOUS ALLEGATIONS.
115.

Throughout the affidavits, Agent Nesbitt and members of the Task Force

juxtaposed unrelated pieces of informationwhile omitting key informationin an effort to


mislead the Magistrate and obtain warrants. Numerous examples of misleading and untruthful
statements are identified below.
116.

In addition to providing false information and materially omitted key information,

Agent Nesbitt and the members of the Task Force juxtaposed unrelated information in order to
create false syllogisms and mislead the Court about the basis for the warrants.
27

117.

Examples of material omissions and misleading statements are identified below.

These examples will be supplemented by additional information contained in the undisclosed


Brady material, as well as the evidentiary hearing.
A.

Agent Nesbitt misled the magistrate with inaccurate information about


Jonathan Eborn and Mr. Shurtleffs interview with the FBI.

118.

In affidavits, Agent Nesbitt and members of the Task Force mischaracterized

statements made by Jonathan Eborn, as discussed below.


119.

During an interview with Agent Nesbitt, Mr. Eborn made vague references and

admitted that he could not remember specific statements, given the length of time that had
elapsed between his interview and events in 2008.
120.

Despite Mr. Eborns weak recollection of events, Agent Nesbitt and members of

the Task Force misquoted Mr. Eborns statements throughout the affidavit without disclosing
issues pertaining to his memory.
121.

Agent Nesbitt also failed to disclose that Mr. Eborn candidly admitted that he

made assumptions about Mr. Johnsons relationship with Mr. Shurtleff.


122.

Agent Nesbitt mischaracterized Mr. Shurtleff as publicly defending Mr.

Johnson and proclaim[ing] Mr. Johnson a legitimate businessman, when Mr. Eborn disavowed
similar statements during an interview with Agent Nesbitt.
123.

Based on a comparison of interview transcripts and statements made in the

affidavits, it appears that Agent Nesbitt, at times, fabricated statements and attributed them to
Mr. Eborn.

28

B.

Agent Nesbitt misled the magistrate with inaccurate statements about Mr.
Shurtleffs Senate campaign and FBI interview.

124.

Agent Nesbitt and members of the Task Force mischaracterized the reasons that

Mr. Shurtleff abandoned a campaign for the United States Senate in 2009.
125.

Agent Nesbitt fabricated the statement: Mark Shurtleff said that the Bennett

campaign was not going to release any campaign ads against him.
126.

In fact, throughout his interview, Mr. Shurtleff described in detail the family

challenges and difficulty of balancing the responsibilities of the Attorney Generals Office with a
Senate campaign. Mr. Shurtleff clearly stated that he dropped out of the race in order to devote
additional time to his daughter, who was struggling with significant health issues.
127.

During his interview, Mr. Shurtleff was surprised at the allegations relating to the

Bennett advertisement, informed the FBI agents that it was the first instance that he had heard of
the allegations, and stated that his campaign staff may have been aware of the advertisement but
that they never said anything to Mr. Shurtleff.
128.

Despite the transcript, Agent Nesbitt attempts to create a misleading inference of

false statements to the FBI, when in fact Mr. Shurtleff openly addressed and responded to the
FBI agents questions relating to his decision to drop out of the Senate campaign.
C.

Agent Nesbitt mischaracterized statements from other interviews.

129.

Agent Nesbitt failed to inform the Magistrate of the contents of an interview with

Ms. Barlow, where Ms. Barlow indicated that she did not have personal knowledge of a quid
pro quo agreement between [Mr. Shurtleff] and [Mr. Jenson, and that she] did not think that it
was unethical that [Mr. Shurtleff] wanted a plea in abeyance instead of a trial.

29

D.

Agent Nesbitt mischaracterized the basis of the State of Utahs participation


in and withdrawal from a private civil action against Bank of America.

130.

Throughout the affidavit, Agent Nesbitt used material misrepresentations and

omissions to mislead the magistrate about the State of Utahs participation in Bell v.
Countrywide Bank NA, a private civil suit pending in the United States District Court for the
District of Utah from March 2011 to February 2013.
131.

Overall, Agent Nesbitt failed to accurately represent or investigate facts and

details relating to the Bank of America allegations. For example, the private action, which
involved more defendants than just Countrywide Bank, N.A. d/b/a/ Bank of America, was
originally filed in state court. It was not removed to federal court until March 22, 2011.
Similarly, Agent Nesbitt made little or no attempt to obtain relevant and key information from
Troutman Sanders before including sweeping misrepresentations in the search warrant affidavits.
132.

Agent Nesbitt either intentionally or recklessly attempted to create a negative

inference from the fact that Mr. Shurtleff met with Countrywide representatives and then, two
weeks later, granted an extension to Countrywide. There is nothing improper or unlawful about
meeting attorneys or granting an extension as part of civil litigation. In fact, Utahs Standards of
Professionalism and Civility encourage attorneys to grant reasonable requests for extensions.
133.

To further confuse the separate and independent conduct of Mr. Shurtleff and Mr.

Swallow, Agent Nesbitt falsely alleged that Mr. Shurtleff gave the order to grant the extension,
when in fact evidence suggested that the order for an extension originated with Mr. Swallow.
134.

Agent Nesbitt confused the timeline of the Bell litigation by intentionally omitting

the fact that Mr. Swallow did not know that hosts of the fundraiser were involved in the
foreclosure case until after the date of the States intervention or the extension.
30

135.

Agent Nesbitt referenced Mr. Shurtleffs interview with a future employer in an

effort to mislead the magistrate into believing that the two events were related. Agent Nesbitt
had no information or evidence that Mr. Shurtleffs offer of employment on the State Attorneys
General Team of a nationwide firm that represents hundreds of corporate clients bore any
relation to the States minor participation in the Bell litigation.
136.

Agent Nesbitt attempted to create a negative inference by referencing Assistant

Attorney General Jerry Jensens exclusion from the Bell litigation in the fall of 2012. Agent
Nesbitt, however, fails to inform the magistrate that Jerry Jensen, who instigated intervention in
the litigation, had been removed from the case due to a perceived personal conflict.
137.

Agent Nesbitt created a false and misleading inference about the circumstances

surrounding the settlement of the Bell litigation.


138.

Misconstruing the import and scope of settlement negotiations in the Bell case,

Agent Nesbitt intentionally or recklessly attempted to create a misleading inference that the
Attorney Generals Office abandoned the interests of thousands of Utah citizens. In fact, even as
it withdrew from the Bell litigation, the Attorney Generals Office remained active in asserting
the same arguments and interests in other cases.
139.

The Attorney Generals Office had completed an investigation into Bank of

America two years before Mr. Bell filed his private civil action. Mr. Shurtleffs office negotiated
a nationwide settlement with the five largest banks, including Bank of America, which brought
tens of millions of dollars to Utah homeowners and the State for the benefit of those who fell
victim to anti-consumer practices.

31

140.

For example, the Utah Supreme Court issued a decision favorably to Utah in

Federal National Mortgage Association v. Sundquist,9 a case which was briefed during Mr.
Shurtleffs administration and decided after his departure from office.
141.

Moreover, Agent Nesbitt failed to provide any discussion of the five cases in

which the State continued to pursue the interests of homeowners, despite the fact that Judge
Jenkins considered these cases when determining whether to allow dismissal in the Bell case.
142.

By failing to mention these cases, Agent Nesbitt misled the magistrate about Mr.

Shurtleffs evaluation of the costs and benefits of continuing the litigation.


143.

Agent Nesbitt further failed to mention that Judge Jenkins ultimately approved the

settlement, in part based on the States representation that the interests of homeowners were
protected in other pending litigation.
E.

Agent Nesbitt mischaracterized Mr. Shurtleffs voluntary interview with the


Federal Bureau of Investigation.

144.

On May 6, 2013, Mr. Shurtleff visited the FBIs office for the purpose of answers

questions arising out of the investigation of Mr. Swallow. Mr. Shurtleff perceived his
participation as voluntary. Attendees included Mr. Shurtleff, Special Agent Jon Isakson, Special
Agent Crystal Bowen, and Ed Sullivan.
F.

Agent Nesbitt created a false narrative surrounding Mr. Shurtleffs visit to


California based principally on statements of Mr. Jenson without adequately
disclosing that Mr. Jenson was serving a prison sentence.

145.

In May 2009, Mr. Shurtleff travelled to a resort in California to devote time to

finishing a work of historical fiction, which was later published as Am I Not A Man? The Dred
Scott Story.
9

2013 UT 45, 311 P.3d 1004.

32

146.

Throughout the affidavits, Agent Nesbitt created a series of false and misleading

statements in an effort to suggest that the visits to California were illegal or had an improper
purpose, as discussed below.
147.

In doing so, Agent Nesbitt relied heavily on statements obtained during an

interview of Mr. Jenson. Agent Nesbitt fails to mention or ignores significant exculpatory
statements derived from recordings of Mr. Jenson, who was serving a lengthy prison sentence,
and which Agent Nesbitt obtained from Beaver County Jail.
148.

Agent Nesbitt ignored or underemphasized evidence that Mr. Shurtleffs office

pursued Mr. Jenson after he failed to make restitution payments to victims.


149.

Agent Nesbitt deliberately ignored or failed to disclose evidence that Mr.

Shurtleff continued to actively pursue restitution payments through 2009 and 2010.
VII.

AGENT NESBITT AND MEMBERS OF THE TASK FORCE KNEW THAT THE
INFORMATION IN THE AFFIDAVITS WAS FALSE AND MISLEADING.
150.

The Salt Lake District Attorneys Office and FBI-Utah provided oversight,

encouragement, and assistance to Agent Nesbitt and other members of the Task Force throughout
the course of the investigation, which lasted several months.
151.

On information and belief, FBI-Utah provided state agencies with access to the

files containing accurate information about Mr. Shurtleffs role in its investigation of Mr.
Jensons attempts to improperly influence his criminal case in 2008.
152.

Agent Nesbitt interviewed SA Pickens and SA Isakson. Both FBI-Utah agents

possessed accurate information about the circumstances surrounding the recorded conversations.

33

153.

The Salt Lake District Attorneys Office, which had access to FBI-Utahs files,

provided oversight when Agent Nesbitt submitted intentionally and recklessly false statements in
affidavits in order to manufacture probable cause and particularity where none actually existed.
154.

For all of these reasons, the Task Force, including Agent Nesbitt and the Salt

Lake District Attorneys Office, could not have been mistaken about the false and inaccurate
statements used in the affidavits to secure a series of search warrants.
VIII.

AGENT NESBITT AND THE TASK FORCE REPEATED THE FALSE AND
MISLEADING STATEMENTS IN A SERIES OF AFFIDAVITS.
155.

If Mr. Shurtleff pursues the Motion to Suppress, he intends to file an exhibit that

cross-references the many instances in which Agent Nesbitt used identical intentional or reckless
misrepresentations and material omissions to obtain otherwise private information from
numerous other sources and individuals.
IX.

AGENT NESBITT RELIES HEAVILY ON ASSERTIONS BY MEMBERS OF THE


TASK FORCE THROUGHOUT THE SEARCH WARRANT AFFIDAVITS
156.

When preparing and submitting the search warrant affidavits, Agent Nesbitt relied

heavily on statements provided by FBI-Utah and its investigative work.

Agent Nesbitts

dependence on the federal investigatory work is illustrated by the fact that SA Isakson is
referenced approximately 67 times throughout Search Warrant Affidavit 158, and SA Ulsh is
referred to approximately 9 times. Agent Nesbitt also references interviews initially conducted
by FBI-Utah or DOJ-PIN, including interviews involving Mr. Shurtleff.
157.

Agent Nesbitt devotes substantial time and attention in the affidavits to several

key witnesses in this case, including Mr. Jenson and Mr. Johnson, who both appear to have
interacted with FBI-Utah.

34

158.

Given FBI-Utahs substantial role in the investigation, the broad range of

individuals referenced through Agent Nesbitts affidavits, and Agent Nesbitts misleading
narrative, as described above, Mr. Shurtleffs ability to assert and prevail on his Franks claim
will depend, at least in part, on production of all exculpatory and impeachment evidence,
including information pertaining to the propriety of FBI-Utahs involvement in the investigation
and documents within the scope of Mr. Shurtleffs outstanding discovery requests.10
159.

The following table, which incorporates the facts described above, contains

examples of specific instances in which Agent Nesbitt used material omissions or


misrepresentations to obtain a search warrant to invade Mr. Shurtleffs home. The analysis is
intended to be illustrative, not comprehensive.

10

See Ex. A to Brady Motion, III.

35

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

8. Charlene Barlow told your affiant that she was assigned to


prosecute the case against Marc Jenson and that she filed the
charges against Marc Jenson. Charlene Barlow told your
affiant that as the case was proceeding, she heard that Mark
Shurtleff was concerned about the case. Charlene Barlow told
your affiant that she attended a meeting with Mark Shurtleff
(Utah Attorney General), Scott Reed (Criminal Division
Chief), Kirk Torgensen (Chief Deputy), and others about the
case. Charlene Barlow told your affiant that Mark Shurtleff
told her that he had been informed that the case was weak and
that he was worried about being embarrassed if the case
turned out bad.

X11

X12

9. Charlene Barlow told your affiant that she had never heard
of Mark Shurtleff getting involved in any case before, and she
worked for the Utah Attorney General's Office for over 20
years. Charlene Barlow told your affiant that she laid out the
case for Mark Shurtleff and explained to him that the case was
strong with good witnesses. Charlene Barlow told your affiant
that Mark Shurtleff did not seem convinced but told her to
proceed with the case if she felt that the case was strong.

X13

X14

11

Relies on
Misleading
Inference

Misc.
Additional
Issues

Throughout Affidavit 158, Agent Nesbitt omits material information relating to Mr. Jensons criminal case,
including facts relating to the strength of charges, the nature of Mr. Shurtleffs participation in plea negotiations, Mr.
Shurtleffs insistence on restitution, and Mr. Shurtleffs participation in a federal investigation into whether Mr.
Jenson and his associates attempted to improperly influence Mr. Jensons criminal case. Supra SOF, II.
12

SOF, II; see also SOF, 7171.d

13

Supra SOF, II; see also SOF, 42, 46, 47, 7171.d.

14

See supra note 12; see also SOF, 7171.d

36

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

10. Charlene Barlow told your affiant that before the case
against Marc Jenson was resolved, the Utah Attorney
General's Office received a complaint about Marc Jenson's
involvement in the Mount Holly project, and she forwarded
the complaint to the Utah Division of Securities for
investigation. The Mount Holly project involved Marc Jenson
and others soliciting investments to construct a ski resort and
golf course in Beaver County, Utah. Charlene Barlow told
your affiant that the weekend before the trial was to begin for
the case she filed against Marc Jenson; she saw a big article in
the news media regarding the case. Charlene Barlow told your
affiant that the article mentioned behind the scenes
information about Mount Holly and that Mark Shurtleff had
met with Marc Jenson. Charlene Barlow told your affiant that
she heard rumors that Marc Jenson offered to help Mark
Shurtleff with his election if Mark Shurtleff would make the
case go away.

Contains
Material
Omission(s)

X15

15

Supra SOF, II; see also SOF, 71.

16

Supra SOF, 75.

17

Agent Nesbitts reliance on rumors and articles created a substantial hearsay issue.

37

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X16

X17

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

11. Charlene Barlow told your affiant that before the trial was
to begin, Kirk Torgensen told her that Mark Shurtleff was not
comfortable with the case. Charlene Barlow told your affiant
that it became clear to her that Scott Reed or Kirk Torgensen
would try to pull the plug on the case. Charlene Barlow told
your affiant that the week before the trial was to begin; Scott
Reed told her that Mark Shurtleff had told him to offer Marc
Jenson anything to make the case go away. Charlene Barlow
told your affiant that Scott Reed started working on a plea in
abeyance agreement to which she strongly objected because
the case was solid. Charlene Barlow told your affiant that she
had never seen a high profile case like this result in a plea in
abeyance agreement, and Scott Reed told her that Mark
Shurtleff had ordered him to do the plea deal. Charlene
Barlow told your affiant that she refused to offer the plea in
abeyance and said she would quit before she would do so.
Charlene Barlow told your affiant that Scott Reed made the
plea offer.

18

Contains
Material
Omission(s)

X18

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X19

Supra SOF, II; see also SOF, 71.

19

Paragraph 11 appears to be drawn largely from Ms. Barlows FBI interview. Agent Nesbitt includes a misleading
inference insofar as it is not clear from the FBI interview whether the plea in abeyance should be attributed to Mr.
Shurtleff or Mr. Reed. In short, this paragraph illustrates how Agent Nesbitt construed testimony and interviews to
fit a particular theory of the case, even if that theory was inaccurate.

38

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

12. On or about October 31, 2013, Scott Reed provided some


emails to Special Agent Jon Isakson of the Federal Bureau of
Investigation regarding Mark Shurtleff's involvement in the
Marc Jenson plea negotiations. The emails were dated
December 13, 2007, and they were between Scott Reed, Kirk
Torgensen, and Mark Shurtleff using their state email
accounts. One of the messages was from Mark Shurtleff to
Scott Reed and Kirk Torgensen, and it read in part "You
should know that in conversations with his civil attorney
Mark James and some others, I suggested I would seriously
consider a plea in abeyance. i will send a copy down to you
today through in-house mail. In short, he offers to plead 'no
contest' to three thirds, pay a $15,000 fine to Securities
Division, make restitution to and serve a three month
abeyance. For reasons I will be happy to explain in person, I
am intent on accepting a no contest plea in abeyance to three
third degree felonies, but obviously there needs to be a longer
abeyance period and more restitution and perhaps a heftier
fine ...The question I would like you, Kirk and Charlene to
consider is if we could require a longer period but run it
retroactively to some date (i.e. bind-over, or something)...I'm
sure this email will be viewed as capitulation on my part and I
would like to discuss this whole thing at length but I wanted
to get started on this while 1am recovering from my additional
surgery tomorrow. Please know that I am not succumbing to
bribes or threats. This has to do with the fact that among the
dozens of conversations I've had with Jensen supporters, a few
I deemed to be credible, sincere and not motivated by a
financial interest or tie to Jensen; the problems with our
witnesses which may, or may not, be kept from the jury; and
my own conversations with Jensen and my conclusion that he
will be very believable to a jury."

20

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

X20

X21

Relies on
Misleading
Inference

Misc.
Additional
Issues

Agent Nesbit mischaracterizes Mr. Shurtleffs role in negotiations. See supra SOF, II.

21

Agent Nesbitt intentionally misconstrues the email, which states: In sum, Im okay with a shorter abeyance
period but think he should pay a bigger financial penalty. . . . My biggest concern is that Charlene will think I dont
trust her or value all of her outstanding work on this case, so please discuss it with Charlene.

39

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

13. According to information provided to your affiant by


Special Agent Jon Isakson, on October 12, 2007 and October
19, 2007, the Federal Bureau of Investigation recorded, with
Mark Shurtleff's consent, two in-person meetings between
Mark Shurtleff and an employee of Marc Jenson, Paul Nelson.
Certain portions of these recordings support probable cause to
believe that Paul Nelson offered Mark Shurtleff campaign
contributions in exchange for Mark Shurtleff's dismissal of the
charges against Marc Jenson.

X22

X23

14. According to information provided to your affiant by


Special Agent Jon Isakson, during the October 12, 2007
meeting, Paul Nelson encouraged Mark Shurtleff to dismiss
the charges against Marc Jenson for a number of reasons,
including: Paul Nelson's belief that it was "the right thing to
do;" Marc Jenson is a good person and respected in the
community; Marc Jenson is innocent; and Mark Shurtleff
could receive significant campaign contributions in return.
Several times during the October 12, 2007 meeting, Paul
Nelson referenced Mark Shurtleff's ability to become
"friends" with Marc Jenson and his New York investors. Paul
Nelson explained to Mark Shurtleff that the "new friends"
would provide Mark Shurtleff with a significant amount of
campaign contributions. Paul Nelson continued his effort to
persuade Mark Shurtleff to dismiss the charges against Marc
Jenson by, among other things, offering things of value in a
follow up meeting.

X24

X25

Misc.
Additional
Issues

22

Agent Nesbitt fails to acknowledgelet alone discussMr. Shurtleffs critical role in instigating the federal
investigation and participating as a confidential informant. See supra SOF, II, A.
23

Agent Nesbitt attempts to give rise to a false and misleading inferencethat Mr. Shurtleff would be willing to
accept contributions in exchange for dismissal. In fact, the opposite is trueMr. Shurtleff consistently refused to
dismiss the charges. Supra SOF, II.A, II.C.
24

Supra SOF, II.A, II.C.

25

Id.; see also note 23.

40

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

15. According to information provided to your affiant by


Special Agent Jon Isakson, during Mark Shurtleff and Paul
Nelson's in-person meeting on October 19, 2007, Paul Nelson
continued to attempt to persuade Mark Shurtleff to dismiss the
UAGO's charges against Marc Jenson. Paul Nelson continued
to couch his statements in terms of doing "the right thing" and
Mark Shurtleff working to gain "new friends;" Paul Nelson
also described exactly how significant the campaign
contributions to Mark Shurtleff would be if he dismissed the
charges against Marc Jenson. By way of example, Paul
Nelson explained it would not be difficult for Marc Jenson to
guarantee over $500,000 in the course of three months.

16. According to information provided to your affiant by


Special Agent Jon Isakson, not long after the charges were
filed against Marc Jenson, Paul Nelson contacted Timothy
Lawson, a fundraiser and good friend of Mark Shurtleff, and
requested that Timothy Lawson help persuade Mark Shurtleff
to drop the charges against Marc Jenson. Around this time,
Timothy Lawson worked for a call-center (telemarketing)
company called Mentoring of America (MOA). MOA was the
subject of three fraud investigations by the Utah Division of
Consumer Protection that resulted in administrative citations
and one enforcement action. Executives of MOA met with
Mark Shurtleff, and MOA donated money to Mark Shurtleff s
campaign.

26

Supra SOF, II.A, II.C.

27

Supra SOF, II.A, II.C; see also note 23.

28

Supra SOF, II.A, II.C.

29

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

X26

X27

X28

X29

Misc.
Additional
Issues

Agent Nesbitt intentionally or recklessly confused the timeline of events in order to create a causal connection,
when in fact no such causal or temporal connection existed. Supra SOF, 84-85.

41

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

17. On January 7, 2008, Mark Shurtleff wrote an email to his


secretary Helen Petersen, "Helen, can you please call Marsha
Oriti ... at Mentoring of America HQ in California and set up
a lunch meeting with CEO Doug Gravink and COO Gary
Hewitt. For next week? [sic] They will fly up here for the
meeting (and bring me another $15K.) Marsha is expecting
your call. I suggest Market St. Grill (unless Tim has a better
idea.) Please call Tim and let him know date and time after
you set it up. Thanks!" Timothy Lawson was copied the email at fullnester1@netzero.com. Campaign records show
that from August 2007 through November 2008, Mark
Shurtleff received a total of $12,500 from MOA. Robert
Stahura was a managing employee of Mentoring of America,
According to filed court documents, the Federal Trade
Commission (FTC) filed a complaint against MOA, Douglas
Gravink, Gary Hewitt, and others in June of 2009 in the
United States District Court in the Central District of
California.

X30

18. On February 29, 2008, Timothy Lawson sent an e-mail to


Mark Shurtleff with an attachment labeled "Bullet Points."
The text of the e-mail from Timothy Lawson reads, "All I
would like you to do bro is review this." The e-mail was sent
from Timothy Lawson's fullnester@yahoo.com e-mail
account to Mark Shurtleffs [sic] state email account. The
"Bullet Points" attachment contains a list of suggested
changes to the plea deal that was being worked on by the Utah
Attorney General's Office. The attachment suggests that Marc
Jenson would be willing to agree to a plea in abeyance if it
included a reduction, if not elimination, of the amount of
restitution that Marc Jenson owed to his victims. The
attachment also requests an allowance for Marc Jenson to
continue working on the Mount Holly Project, even though it
would require lending and borrowing-funds.

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

X31

X32

30

Agent Nesbitt intentionally misrepresents the amount of the campaign contribution. Supra Part III.

31

Supra SOF, 84-85.

32

Supra SOF, II.A, II.C; see also SOF, 72.

42

Misc.
Additional
Issues

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

19. On or about May 1, 2008, Marc Jenson attempted to enter


into the plea in abeyance agreement that included him paying
a $15,000 fine, no restitution, and no term of incarceration.
The plea was presented to Judge Robin Reese of the Third
District Court in Salt Lake City, and Scott Reed represented
the state. Judge Robin Reese rejected the plea as too lenient
and asked Scott Reed if it truly served the interests of justice.
Scott Reed told Judge Robin Reese that the plea agreement
did not serve all of the interests of justice.

X33

20. On or about May 29, 2008, Marc Jenson entered into a


revised plea in abeyance agreement that involved him paying
a $15,000 fine and $4,100,000 in restitution that had to be
paid within the 36 month plea in abeyance term. The plea
agreement also allowed Marc Jenson to continue his
involvement in the Mount Holly project. Marc Jenson did not
pay any restitution during the 36 month period.

X35

21. According to receipts provided by Marc Jenson, between


about May of 2009 and July of 2009, Mark Shurtleff, John
Swallow, Suzanne Swallow, Nicole Lawson, Chelsea Lawson,
and Timothy Lawson stayed at the Pelican Hill resort in
California where Marc Jenson was living. John Swallow was
the campaign fundraiser for Mark Shurtleff at that time.
According to the receipts and statements made by Marc
Jenson, Marc Jenson paid for them to stay at the luxury resort
including paying for their massages, golf, food, and clothing.
Mark Shurtleff, John Swallow, Suzanne Swallow and the
others received these things at Marc Jenson's expense. Marc
Jenson did not pay his court ordered restitution.

X36

33

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X34

Supra SOF, II.A, II.C.

34

Agent Nesbitt intentionally and improperly attempts to create a negative inference that the judicial finding
surrounding the proposed plea agreement, which was negotiated by Mr. Reed and Mr. Skordas, should be attributed
to Mr. Shurtleff. Supra SOF, II.A, II.C.
35

Supra SOF, II.A, II.C.

36

Supra SOF, 77.

43

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

22. Your affiant obtained reports from Special Agent Jon


Isakson of the Federal Bureau of Investigation. According to
those reports, Marc Jenson told Special Agent Jon Isakson
that prior to the plea in abeyance agreement being rejected, he
heard Scott Reed say that it did not matter if restitution was
ordered because they were going to charge him again with
other charges. Marc Jenson told Special Agent Isakson that he
became concerned and continued to pay Timothy Lawson to
have access to Mark Shurtleff. Marc Jenson told Special
Agent Jon Isakson that Timothy Lawson told him not to worry
about Scott Reed and that Mark Shurtleff would take care of
things from above. Marc Jenson told Special Agent Jon
Isakson that Mark Shurtleff knew that he (Marc Jenson) was
paying Timothy Lawson to contact people to get them to back
off because they were complaining to the Utah Attorney
General's Office.

Contains
Material
Omission(s)

X37

23. Marc Jenson told Special Agent Jon Isakson that Timothy
Lawson's value to him was his close friendship with Mark
Shurtleff, and it was arranged through Timothy Lawson for
Mark Shurtleff and John Swallow to visit him (Marc Jenson)
and stay with him (Marc Jenson) at Pelican Hill. Marc Jenson
told Special Agent Jon Isakson that the purpose of Mark
Shurtleff and John Swallow's trip was to meet Marc Jenson's
investor friends from New York and Los Angeles. Marc
Jenson told Special Agent Jon Isakson that Mark Shurtleff
told him that he wanted to meet his business associates to seek
funding for his United States Senate campaign.

X38

37

Supra SOF, II.A, II.C; see also SOF, 77-78, 145-149.

38

Id

44

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

24. Marc Jenson told Special Agent Jon Isakson that Mark
Shurtleff and John Swallow made two trips to Pelican Hill
that he (Marc Jenson) fully funded. Marc Jenson told Special
Agent Jon Isakson that during the trips, Mark Shurtleff
apologized for what happened to him (Marc Jenson) and told
him that if he had contributed to him (Mark Shurtleff's
campaign) before the charges were filed, none of this would
have happened. Marc Jenson told Special Agent Jon Isakson
that Mark Shurtleff told him that if he would have been a
contributor to his campaign, he would never have been in
trouble in the first place. Marc Jenson told Special Agent Jon
Isakson that it was very clear that in exchange for the trips and
him introducing Mark Shurtleff and John Swallow to his
friends he would never have problems in the state of Utah
again.

X39

X40

X41

X42

X43

25. Marc Jenson explained to Special Agent Jon Isakson that


on at least one occasion in the summer of 2009, he (Marc
Jenson) purchased airline tickets for Mark Shurtleff, John
Swallow and Timothy Lawson by transferring funds into
Timothy Lawson's bank account and having Timothy Lawson
purchase the tickets. Marc Jenson explained that Timothy
Lawson told Marc Jenson that the purchase had to be done
that way to keep the trip secret. Marc Jenson's personal
assistant, Peter Torres, booked the airfare for Timothy
Lawson and sent an e-mail confirmation to Timothy Lawson's
fullnester@yahoo.com account. Timothy Lawson replied to
Peter Torres' e-mail on April 23, 2009 from the same e-mail
account. At the bottom of the e-mail, Timothy Lawson
included his e-mail account of adgillc@gmail.com as part of
his signature. In the body of the e-mail, Timothy Lawson said
"Thanks again for everything bro." Timothy Lawson e-mailed
his bank account information to Peter Torres on August 28,
2009. This e-mail was sent from Timothy Lawson's "Apple
Dumpling Gang" e-mail account, adgillc@gmail.com and
included an attachment with bank wire instructions. In the
body of the e-mail, Timothy Lawson told Peter Torres, "Hey
bro, I had to close my adgi account because of all the bounced

Misleads Re
Third-Party
Statement

39

Mr. Shurtleff expressly denies making the false statements attributed to him in this paragraph.

40

Supra SOF, II.A, II.C; see also SOF, 77-78, 145-149.

41

Supra SOF, II.A, II.C; see also SOF, 77-78, 145-149.

42

Supra SOF, II.A, II.C; see also SOF, 77-78, 145-149.

43

Supra SOF, II.A, II.C; see also SOF, 77-78, 145-149.

45

Relies on
Misleading
Inference

Misc.
Additional
Issues

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

checks etc ... Here is a clean account. If you have any


questions let me know bro, and as usual, I got your back and
believe in you 100%+10." According to Utah Department of
Commerce records, Timothy Lawson is the Registered Agent
and incorporator of the business Apple Dumpling Gang
Investments.

28. According to documents provided by and statements made


by Edward Donner, on March 24, 2009, Timothy Lawson sent
an email message to Tim Bell that was intended for Tim Bell
and Edward Donner. The subject line read "Re: Thoughts for
Tim Bell and Dr. Donner", and the message read "If Dr.
Donner has any questions that I am capable of resolving these
financial issues that he is involved with on the Mount Holly
project he is more than welcome to email the AG [Shurtleff]
and I am sure that he will verify that I am the real deal. ... I
was brought in to help resolve some of these issues by a
distant mutual friend and the AG.... You and Dr. Donner let
me know what your decision is either way. Here is the
Attorney General's email address. Feel free to contact him.
Mark Shurtleff (mShurtleff@utah.gov) Keeping the Tropics
Tropical! Timothy W. Lawson C.E.O. * * *
tim@slipstreamintemational.com adgillc@gmail.com"

44

X44

Agent Nesbitt does not include any reference to an explanatory email from Mr. Wadley to Mr. Donner.

46

Misc.
Additional
Issues

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

33. An email dated September 23, 2009, was from Scott Reed
to Kirk Torgensen using their state email accounts. The email
read "Do you remember whether the Attorney general was in
California around the first part of May? I just got off the
phone with Morty Elbling, who says that Tim Lawson says
that the AG met with Mark Jenson in California around Cinco
de Mayo, and that Lawson was there with him when the
meeting occurred. This would be a different meeting than the
one we know about in June where the AG went to church and
had lunch with Jenson. This coincides with Mark's directive to
put a bunch of Mounty Holly complaints on a fast track,
involving Steve Jenson and others, who were claiming to have
been bilked by some very bad men out of New York. Mark
put out those complaints on May 8, arguably after his meeting
with Jenson and Lawson and getting an earful about Mt. Holly
and probably saying something like 'put it in writing and I'll
give it to my investigators, and in the meantime I'll call my
good friend AG Cuomo in New York and get something
going for you.' Interesting if true. Whether it's true or not,
Channel 5 has it, which means that everybody who cares has
it too, and it will come out sometime during the campaign.
SWR".

X45

34. According to statements made by Darl McBride to your


affiant and filed court documents, on or about March 26,
2009, a civil lawsuit was filed against Alison Robbins in the
Third District Court in Salt Lake City by Darl McBride
regarding a $105,000 check that was returned for insufficient
funds. Mark Robbins and Alison Robbins had fled to
California, and their exact location was not known. Darl
McBride told Special Agent Jon Isakson that he had made two
loans of $100,000 each to Mark Robbins who promised to
repay them, and the $105,000 check was repayment of the
second loan. Darl McBride told your affiant that Mark
Robbins had promised him (Darl McBride) a job to run
operations for him at Mark Robbins' company AlP. Darl
McBride told your affiant that Mark Robbins told him that his
base salary was to be $500,000 with $1,500,000 in bonuses.

45

Supra SOF, II.A, II.C.

46

Supra SOF, IV; see also SOF, 105.

Contains
Material
Omission(s)

X46

47

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

35. According to statements made by Darl McBride to your


affiant, he created a website called Skyline Cowboy for the
purpose of offering a reward for information about the
whereabouts of Mark Robbins, so he could have lawsuit
paperwork served. According to Skyline Cowboy site, Darl
McBride posted many items about Mark Robbins not
appearing for court, having a warrant out for his arrest, being
the subject of a lawsuit, and being sought by the police. Darl
McBride provided information to KSL News regarding Terry
Diehl and Mark Robbins' involvement in the UTA situation.
Before the Skyline Cowboy website went up and immediately
after the KSL News story broke, Timothy Lawson called Darl
McBride. Timothy Lawson told Darl McBride that he has
been talking to Mark Shurtleff and that Mark Shurtleff wanted
him (Darl McBride) to back off of Mark Robbins and that he
was speaking in behalf of Mark Shurtleff. Darl McBride told
Timothy Lawson that he was not going to back off, and he put
up the Skyline Cowboy website with a link to the KSL News
story.

X47

X48

36. According to statements made by Darl McBride to your


affiant, Timothy Lawson called him again using foul and
abusive language telling him to take the Skyline Cowboy
website down. Timothy Lawson told Darl McBride that if he
did not back off of Mark Robbins and take the website down,
he would be sitting in jail for a long time because Mark
Shurtleff had things on him. Timothy Lawson told Darl
McBride that he did not know who he was dealing with.
Timothy Lawson told Darl McBride that he was Porter
Rockwell for Mark Shurtleff and takes care of things for Mark
Shurtleff like Porter Rockwell did. Timothy Lawson told Darl
McBride that he was dealing with the wrong guy who has
guns and Polynesian friends who like to bust people up.
Timothy Dawson told Darl McBride that he spoke with Mark
Shurtleff who said that those three things would happen if he
did not back off. Darl McBride received those telephone calls
from Timothy Lawson while in Salt Lake County.

X49

47

Supra SOF, IV, see also SOF, 104.

48

Supra SOF, IV, see also SOF, 104.

49

Supra SOF, IV, see also SOF, 104, 106.

50

Supra SOF, IV, see also SOF, 104, 106.

Contain An
Express
Falsehood

48

Relies on
Misleading
Inference

X50

Misc.
Additional
Issues

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

37. According to statements made by Darl McBride to your


affiant, about two weeks later, Mark Shurtleff called him and
told him he wanted to meet with him at Mimi's Cafe on State
Street in Sandy City. Mark Shurtleff and Darl McBride met
there on about May 8, 2009, and the meeting was audio
recorded by Darl McBride. Darl McBride provided a copy of
the recording to the Federal Bureau of Investigation and your
affiant listened to the recording. The recording revealed that
during the meeting, Mark Shurtleff told Darl McBride that
Timothy Lawson was a friend who he met while running for
Attorney General. Mark Shurtleff acknowledged that he knew
that Timothy Lawson uses his name and tells people that he
represents the Attorney General. Mark Shurtleff told Darl
McBride "He'll use me for different things".

X51

X52

X53

38. The recording revealed that during the meeting, Mark


Shurtleff told Darl McBride that he first knew of Mark
Robbins during the prosecution of Marc Jenson. Mark
Shurtleff told Darl McBride that Marc Jenson was always
arguing that Mark Robbins was the real bad guy preventing
him from paying people back. Mark Shurtleff told Darl
McBride that Timothy Lawson had introduced him to people
who became contributors to his campaign. Mark Shurtleff told
Darl McBride that the Skyline Cowboy website was "pretty
harsh" and was worried that Mark Robbins couldn't get any
deals done if people saw that website. Mark Shurtleff
acknowledged that what Mark Robbins was doing was a
"Ponzi" scheme.

X54

X55

51

Contain An
Express
Falsehood

Misc.
Additional
Issues

Supra SOF, IV, see also SOF, 104, 106.

52

Supra SOF, IV, see also SOF, 104, 106. Specifically, Agent Nesbitt took Mr. Shurtleffs statement
completely out of context.
53

Supra SOF, IV, see also SOF, 104, 106.

54

Supra SOF, IV, see also SOF, 104, 106.

55

Supra SOF, IV, see also SOF, 104, 106. In fact, it was Mr. McBride who described the Ponzi scheme, and
there was no firm acknowledgement from Mr. Shurtleff, in part because Mr. Shurtleff had little familiarity with Mr.
Robbinss business activities at the time of the meeting, which Mr. McBride pursued.

49

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

X56

X57

X58

X59

39. The recording revealed that during the meeting, Mark


Shurtleff asked Darl McBride "What can I do?" Darl McBride
told Mark Shurtleff that he needed $2,000,000, and Mark
Shurtleff asked Darl McBride if he knew Marc Jenson. Mark
Shurtleff told Darl McBride that that he believed that Mark
Robbins was not good for it and believed that Marc Jenson
was. Mark Shurtleff offered to make a call to either Mark
Robbins or Marc Jenson to see if he could help out. Mark
Shurtleff told Darl McBride "But you got your money, you
got to promise us there can't be anything else from you. You
know, it's just straight up." Darl McBride told your affiant that
months after that meeting, Timothy Lawson sent him a text
message that said that he was messing with the 12th richest
man in the world and said in capital letters "YOU ARE
GOING DOWN". Marc Jenson told your affiant that he, Mark
Shurtleff, and John Swallow met together in California. Marc
Jenson told your affiant that Mark Shurtleff told him that he
needed to give $2,000,000 to Timothy Lawson for Timothy
Lawson to give to Darl McBride because that was how much
it would take to get Darl McBride to back off of Mark
Robbins. Marc Jenson told your affiant that John Swallow
was nodding his head during the conversation. Marc Jenson
told your affiant that he had been involved in business
dealings with Mark Robbins, and Mark Robbins owed him
money.

56

Misc.
Additional
Issues

Mr. Shurtleff denies that he ever informed or instructed Mr. Jenson to pay $2,000,000 to give to Mr. McBride.
Agent Nesbitt improperly relied on this theory without conducting any investigation. Indeed, the AGs Office
recently obtained a determination from the Board of Pardons that controverts this narrative. Jennifer Dobner, Utah
Parole Board: $4.1 Million Still Owed by Businessman with Ties to Shurtleff, Swallow Scandal, Salt Lake Tribune
(Mar. 21, 2016), available at http://www.sltrib.com/home/3689548-155/utah-parole-board-41-million-still. More
importantly, there is no indication or allegation that the Mr. Jenson ever made any claims of these claims between
2010 and 2012. Agent Nesbitt also fails to mention that Mr. Jenson began making these allegations after he believes
there was a threat on his life while in state custody, or the fact that Mr. Jenson was desperate to leave incarceration.
57

Supra SOF, IV, see also SOF, 104, 106.

58

Supra SOF, IV, see also SOF, 104, 106.

59

Supra SOF, IV, see also SOF, 104, 106.

50

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

59. According to campaign donation records, Jeremy Johnson,


his business partners, and family members were political
donors, having given more than $200,000 in campaign
contributions to then Utah Attorney General Mark Shurtleff
starting in 2008 while John Swallow served as Mark
Shurtleff's lead fundraiser. Jeremy Johnson also supported
charities and Attorney General's Office initiatives in which
Mark Shurtleff was involved. Jeremy Johnson flew Mark
Shurtleff on his private jet to a fundraiser in California.
Photographs that can easily be found on the Internet show
Jeremy Johnson and Mark Shurtleff sitting together in Jeremy
Johnson's yellow Lamborghini sports car that is parked in
front of a jet, Jeremy Johnson and Mark Shurtleff sitting
together inside a jet, and Jeremy Johnson and Mark Shurtleff
standing together in front of a helicopter.

X60

86. In addition to being involved in the case against Marc


Jenson, Timothy Bell had other significant involvement with
the Utah Attorney General's Office. On or about March 16,
2011, Timothy and Jennifer Bell filed suit against Bank of
America and Recon' Trust, a foreign corporation, in federal
court challenging the foreclosure practices of Recon' Trust in
the foreclosure of the Bells' residence located at 5346 South
Cottonwood Lane in Holladay, Utah. The Bells argued that
Bank of America and Recon' Trust acted as a trustee on their
Utah trust deed in violation of Utah law. The defense's motion
to dismiss was denied on March 15, 2012.

60

Supra SOF, V; see also id. SOF, 111.

61

Infra note 56.

Contains
Material
Omission(s)

X63

62

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X61

X62

X64

As discussed throughout the Brady Motion and Exhibit A, Mr. Shurtleff seeks a wealth of Brady information
relating to allegations involving Mr. Johnson and Senator Harry Reid, both of whom Agent Nesbitt references
throughout the search warrant affidavits.
63

Supra SOF, VI.D; see also SOF, 131.

64

Supra SOF, VI.D; see also SOF, 139.

51

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

90. On August 7, 2012, John Swallow and then Attorney


General Mark Shurtleff met with the Bank of America
attorneys and the bank's lobbyist to discuss the Bells'
litigation. On August 10, 2012, John Swallow received an
email from the lobbyist asking for the State's consent for an
extension of time to file a response pleading. John Swallow
forwarded the email to AAG Brian Farr, the division chief
supervising the line attorneys in the Bell case and to Mark
Shurtleff. On August 15, 2012, Bank of America requested
the extension, and the Utah Attorney General's Office
consented to the extension, The order to consent to the
extension came from Mark Shurtleff and John Swallow.

X65

96. According to Mark Shurtleffs calendar, Mark Shurtleff


had interviews with the law firm Troutman Sanders on
October 30, 2012 and October 31, 2012 with the second
interview occurring in Atlanta, Georgia. According to the
website of Troutman Sanders "the Atlanta office is a fullservice law practice and the world headquarters for Troutman
Sanders LLP...The office has a large presence in Atlanta that
includes, 13 stories in the Bank of America Plaza." According
to the website of Troutman Sanders, Bank of America is client
of the firm.

65

Supra SOF, VI.D; see also SOF, 132.

66

Id.

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X66

X67

X68

67

Agent Nesbitt knew or should have known Mr. Shurtleffs employment had nothing to do with Bank of America,
because Agent Nesbitt had already contacted Troutman Sanders to discuss an investigative subpoena that had been
served on the firm. Instead of conducting adequate research, Agent Nesbitt made reckless, uninformed, and
inflammatory statements about Mr. Shurtleffs employment. Supra SOF, VI.D; see also SOF, 131.
68

Id.

52

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

97. On October 30, 2012, the Bells were accepted into a loan
modification program with Bank of America they sought to
obtain for several months. The modification came after
contacting John Swallow and asking for his assistance on
October 28, 2012. The Bells received a significant reduction
in the loan principal and interest rate. The modification the
Bells received entailed a $1.13 million reduction in their loan
balance, and reduction of their interest rate from 7.5% to
2.65%. The modification did not affect the pending litigation
on behalf of thousands of Utahns whose interests were being
represented by the Utah Attorney General's Office. .

X69

X70

99. According to text messages between Timothy Lawson, a


personal friend of Mark Shurtleff and John Swallow, Mark
Shurtleff told Timothy Lawson on November 14, 2012 "On
my way to NYC in the morning. Getting close to accepting
offer with national law firm".

X71

X72

102. On December 1, 2012, John Swallow advised the


assigned AAG (Jerry Jensen) that he (Jerry Jensen) was no
longer assigned the case. In and around December 2012, AAG
Jerry Jensen attempted to plead the motion for summary
judgment with then Attorney General Mark Shurtleff,
advising Mark Shurtleff that he believed the case was strong
and the State would prevail.

X73

103. On December 17, 2012, an article was published in the


news publication LawDragon that explained that Troutman
Sanders announced that Mark Shurtleff will join the firm
(Troutman Sanders) in January of 2013.

Misc.
Additional
Issues

X74

69

Agent Nesbitt omitted the fact that attempts to resolve the matter through settlement pre-dated October 2012.

70

Supra SOF, VI.D; see also SOF, 138-143.

71

Supra SOF, VI.D; see also SOF, 138-143.

72

Supra notes 68, 67-68.

73

Agent Nesbitt intentionally omits that, by December 2012, Mr. Jensen was no longer assigned to handle the
motion, due to personal conflicts.
74

Supra notes 67-68.

53

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

104. On or before December 19, 2012, then Attorney General


Mark Shurtleff personally contacted the Bank of America
lobbyist and told him the State would be dismissing its case.
On December 27, 2012, then Attorney General Mark Shurtleff
personally signed the State's dismissal of the case without
contacting the line AAG, Jerry Jensen. Upon learning of the
dismissal, the line AAG, Jerry Jensen contacted Mark
Shurtleff wanting to know the reason the Attorney General
had done so.

X75

117. During the interview with Special Agent Isakson, Mark


Shurtleff said that he never pressured his employees at the
Utah Attorney General's Office to influence or skirt an issue.
However, according to Scott Reed and Charlene Barlow, they
were pressured by Mark Shurtleff into the plea in abeyance
agreement for Marc Jenson.

118. During the interview with Special Agent Isakson, Mark


Shurtleff claimed that the only reason he dropped out of the
United States Senate race in 2009, against incumbent Senator
Bob Bennett was because he needed to take his daughter to
rehab. Mark Shurtleff said that the Bennett campaign was not
going to release any negative ads against him. However, the
Bennett Group told Special Agent Isakson that they were
going to run an ad against Mark Shurtleff showing Mark
Shurtleff's relationship with Jeremy Johnson. The Bennett
Group claimed that Jason Powers, Mark Shurtleff's campaign
manager, called them within days of learning of the Bennett
Group's ad campaign and told them not to run the ad because
Mark Shurtleff was going to drop out of the race.

X76

75

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X77

X78

Agent Nesbitt intentionally omits that, by December 2012, Mr. Jensen was no longer assigned to handle the
motion, due to personal conflicts. See also supra SOF, VI.D.
76

Supra SOF, VI.E.

77

Id.

78

Id.

54

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

119. During the interview with Special Agent Isakson, Mark


Shurtleff said that Charlene Barlow was concerned about her
witnesses in the Marc Jenson case. However, Charlene
Barlow told the F.B.I. Agents, as well as Scott Reed and Kirk
Torgensen, that she had confidence in her witnesses and
believed her case against Marc Jenson was strong. The F.B.I.
has copies of multiple e-mails to Mark Shurtleff that show
how confident Charlene Barlow was with the case and her
witnesses.

Misc.
Additional
Issues

X79

120. During the interview with Special Agent Isakson, Mark


Shurtleff claimed he did not know that Timothy Lawson was
being paid by Marc Jenson to persuade him (Mark Shurtleff)
to drop the charges against Marc Jenson in the time period
before Marc Jenson's plea deal. However, in an e-mail sent in
August 2007, Mark Shurtleff told Scott Reed that Marc
Jenson had offered "set for life money" to a friend if he can
convince Mark Shurtleff to drop charges against Marc Jenson.

X80

121. Marc Jenson told Special Agent Isakson that he hired


Timothy Lawson to persuade Mark Shurtleff to drop charges
against him. Mark Shurtleff did not tell the F.B.I. in 2007 that
Timothy Lawson was trying to persuade him to drop the
charges against Marc Jenson. Mark Shurtleff also never
mentioned that Robert Stahura was attempting to influence
him to drop the charges against Marc Jenson.

X81

X82

X83

79

Id.; see also supra SOF, II (illustrating conflicting narratives).

80

Supra SOF, II.A, II.C

81

Supra SOF, VI.E.

82

Paragraph 120 contains a false syllogism. The use of the word however creates a misleading impression that
Mr. Shurtleff knew that Mr. Lawson actually received payment from Mr. Jenson to unduly influence the Attorney
Generals Office during his FBI interview, and that Mr. Shurtleff lied about the existence of the offer. In reality, Mr.
Shurtleff not only openly discussed the email during the interview, but also provided FBI agents with specific names
of other individuals who attempted to influence Mr. Jensons prosecution.
83

Supra SOF, II.A, II.C

55

Excerpts of Agent Nesbitts Statements


in Search Warrant Affidavit 158

Contain An
Express
Falsehood

Contains
Material
Omission(s)

127. During the interview with Special Agent Isakson, Mark


Shurtleff claimed Charlene Barlow pulled herself off the Marc
Jenson case because she lost confidence in the case. Charlene
Barlow told your affiant that she had never seen a high profile
case like this result in a plea in abeyance agreement, and Scott
Reed told her that Mark Shurtleff had ordered him to do the
plea deal. Charlene Barlow told your affiant that she refused
to offer the plea in abeyance and said she would quit before
she would do so. Charlene Barlow told your affiant that Scott
Reed made the plea offer.

X84

X85

Misleads Re
Third-Party
Statement

Relies on
Misleading
Inference

Misc.
Additional
Issues

X86

84

Agent Nesbitt deliberately mischaracterized Mr. Shurtleffs statement. In response to a question regarding Ms.
Barlows decision to leave the case, Mr. Shurtleff stated: I think I assumed it was because Charlene wanted to go
forward and didnt have confidence or something didnt feel like she had-I-she had my confidence[.] I dont know
if she ever told me that or Scott told me that or whatever[.]
85

Supra SOF, II.A, II.C

86

Through the affidavits, Agent Nesbitt mischaracterizes statements in an attempt create a false inference that Mr.
Shurtleff provided false information to the FBI. Paragraph 127 illustrates the defects in Agent Nesbitts
inflammatory characterizations, which were inconsistent with the underlying facts. Supra SOF, II.A, II.C

56

CERTIFICATE OF SERVICE
I hereby certify that, on the 24th day of June 2016, a copy of the foregoing was filed and served
via electronic notification on the following:
Troy S. Rawlings
David M. Cole
Davis County District Attorney
800 West State Street
Farmington, Utah 84025
Simarjit S. Gill
Chou Chou Collins
Byron Fred Burmester
Salt Lake County District Attorney
111 East Broadway, Suite 400
Salt Lake City, Utah 84111

/s/ Nathanael J. Mitchell

57