shurtleff exhibit b — 6/24/16

7/25/2019 Shurtleff Exhibit B 6/24/16

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Max D. Wheeler (3439)Samuel Alba (0031)Richard A. Van Wagoner (4690)Nathanael J. Mitchell (14727)SNOW, CHRISTENSEN & MARTINEAU10 Exchange Place, 11thFl., P.O. Box 45000Salt Lake City, Utah 84145Telephone: (801) 521-9000Fax: (801) 363-0400Email: [email protected]

[email protected]@[email protected]

Attorneys for Defendant Mark L. Shurtleff

IN THE THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH

STATE OF UTAH,

Plaintiff,

v.

MARK L. SHURTLEFF,

Defendant.

EXHIBIT B TO THE MOTION TODISMISS FOR BRADY/GIGLIO ANDSPEEDY TRIAL VIOLATIONS

Case No. 141907720

Judge Elizabeth A. Hruby-Mills

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).


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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 theBrady 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.

1 In Franks v. Delaware, the United States Supreme Court recognized that the ex parte nature of the warrantapplication process could lead to prosecutorial abuse. Franks v. Delaware, 438 U.S. 154, 169-170 (1978). Toprotect against this risk, the Court held than individuals are entitled to use an evidentiary hearing to challenge thevalidity of a search warrant, if there is a preliminary showing that (i) an affiant in an affidavit supporting a searchwarrant made a false statement intentionally, knowingly, or with reckless disregard for the truth, and (ii) theaffidavit 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 orreckless false statements or material omissions, the search warrant must be voided and the fruits of the searchexcluded to the same extent as if probable cause was lacking on the face of the warrant. Franks, 438 U.S. at 155.


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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 intoMr. 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

2See Utah House of Representatives, Report of the Special Investigative Committee 19-21 (March 11, 2014).


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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. Swallowsimproper campaign finance activities, a joint task force sought and obtainedwarrants 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.

3Id.at 29.

4Id.at 6, 38.

5Id.at 103.


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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


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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 ROLEIN 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 second-

guessing of Mr. Shurtleffs management centered on his exercise of oversight in a co ntroversial,

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


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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 ofattempts 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


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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.


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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 assistin 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.

6To avoid entrapment, SA Pickens coached Mr. Shurtleff to simply repeat on camera that he could not rememberexactly what Mr. Nelson had said to him while in the hospital.


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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. Jensonscriminal case. Instead, Mr. Shurtleff insisted that prosecutors reach a fairresolution 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.

7In October 2010, Ms. Barlow became the Honorable Charlene Barlow of the Third District Court for the State ofUtah. Because her participation in the relevant events predated her appointment to the bench, Ms. Barlow is referredto in a private capacity throughout this exhibit.


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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


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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.


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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.


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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.


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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


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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 factsrelating 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.


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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.


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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 rum ors

[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.


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III. THE TASK FORCE FABRICATED AN IMPROPER CONNECTION BETWEENMR. 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

8Affidavit 158, 15-17.


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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.


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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 THEMEETING AT MIMIS CAF.

A.

While serving as Attorney General, Mr. Shurtleff met with Darl McBride todiscuss 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


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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


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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.


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B. Agent Nesbitt and the Task Force misrepresented the Mimis Caf meetingand 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.


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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.


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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 ANDOMISSIONS 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 andsponsored 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


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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 quidpro quo with Mark Shurtleff.

VI. AGENT NESBITT AND THE TASK FORCE MISLED THE MAGISTRATE IN ASERIES 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.


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117. Examples of material omissions and misleading statements are identified below.

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

Bradymaterial, as well as the evidentiary hearing.

A. Agent Nesbitt misled the magistrate with inaccurate information aboutJonathan 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.


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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.


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D. Agent Nesbitt mischaracterized the basis of the State of Utahs participationin 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.


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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 theBell 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 theBell 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.


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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 theBell 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 theFederal 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 toCalifornia based principally on statements of Mr. Jenson without adequatelydisclosing 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.

92013 UT 45, 311 P.3d 1004.


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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 THEINFORMATION 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.


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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 ANDMISLEADING 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 THETASK 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.


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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.

10See Ex. A toBradyMotion, III.


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37/57

37

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/,^)*4 ,2 7,*F)'4&.3,*4 UJF) %&/ -3.% 9)*4)* 4166,'.)'4: & 2)-U /))>)/ ., =) 7')/3=(): 43*7)') &*/ *,. >,.3F&.)/ =0 &23*&*73&( 3*.)')4. ,' .3) ., 9)*4)*R .%) 6',=()>4 -3.% ,1'-3.*)44)4 -%37% >&0: ,' >&0 *,.: =) ;)6. 2',> .%) Q1'0R &*/>0 ,-* 7,*F)'4&.3,*4 -3.% 9)*4)* &*/ >0 7,*7(143,* .%&. %)-3(( =) F)'0 =)(3)F&=() ., & Q1'0"X

X20

X21

20Agent 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 abeyanceperiod but think he should pay a bigger financial penalty. . . . My biggest concern is that Charlene will think I donttrust her or value all of her outstanding work on this case, so please discuss it with Charlene.


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OT" A77,'/3*5 ., 3*2,'>&.3,* 6',F3/)/ ., 0,1' &223&*. =0


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O\" A77,'/3*5 ., 3*2,'>&.3,* 6',F3/)/ ., 0,1' &223&*. =0344 .%)@ABKJ4 7%&'5)4 &5&3*4. 8&'7 9)*4,*" ]&1( _)(4,* 7,*.3*1)/., 7,17% %34 4.&.)>)*.4 3* .)'>4 ,2 /,3*5 X.%) '35%. .%3*5X &*/8&'; 6&35*7,*.'3=1.3,*4 ., 8&'; ):H3>,.%0 c&-4,* -,';)/ 2,' & 7&((Z7)*.)' ?.)()>&';).3*5C7,>6&*0 7&(()/ 8)*.,'3*5 ,2 A>)'37& ?8KAC" 8KA -&4 .%)41=Q)7. ,2 .%')) 2'&1/ 3*F)4.35&.3,*4 =0 .%) @.&% E3F343,* ,2$,*41>)' ]',.)7.3,* .%&. ')41(.)/ 3* &/>3*34.'&.3F) 73.&.3,*4&*/ ,*) )*2,'7)>)*. &7.3,*" dN)71.3F)4 ,2 8KA >). -3.%

8&';


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OW" K* 9&*1&'0 W: LMM!: 8&'; &3( ., %344)7').&'0 P)()* ]).)'4)*: XP)()*: 7&* 0,1 6()&4) 7&(( 8&'4%&K'3.3 """ &. 8)*.,'3*5 ,2 A>)'37& Pe 3* $&(32,'*3& &*/ 4). 16& (1*7% >)).3*5 -3.% $dK E,15 B'&F3*; &*/ $KK B&'0P)-3.." V,' *)N. -));f g437h H%)0 -3(( 2(0 16 %)') 2,' .%)>)).3*5 ?&*/ ='3*5 >) &*,.%)' [O\G"C 8&'4%& 34 )N6)7.3*50,1' 7&((" U 4155)4. 8&';). &*/ (). %3> ;*,- /&.) &*/ .3>) &2.)'0,1 4). 3. 16" H%&*;4iX H3>,.%0 c&-4,* -&4 7,63)/ .%) )Z>&3( &. 21((*)4.)'Oj*).^)',"7,>" $&>6&35* ')7,'/4 4%,-.%&. 2',> A1514. LMMW .%',15% _,F)>=)' LMM!: 8&';)'37&:

A77,'/3*5 ., 23()/ 7,1'. /,71>)*.4: .%) V)/)'&( H'&/)$,>>3443,* ?VH$C 23()/ & 7,>6(&3*. &5&3*4. 8KA: E,15(&4B'&F3*;: B&'0 P)-3..: &*/ ,.%)'4 3* 91*) ,2 LMMI 3* .%)@*3.)/ H3>,.%0 c&-4,* ')&/4: XA(( U-,1(/ (3;) 0,1 ., /, =', 34 ')F3)- .%34"X H%) )Z>&3( -&4 4)*.2',> H3>,.%0 c&-4,*J4 21((*)4.)'j0&%,,"7,> )Z>&3(&77,1*. ., 8&'; )*. &(4, ')S1)4.4 &* &((,-&*7) 2,' 8&'7 9)*4,* .,7,*.3*1) -,';3*5 ,* .%) 8,1*. P,((0 ]',Q)7.: )F)* .%,15% 3.-,1(/ ')S13') ()*/3*5 &*/ =,'',-3*5Z21*/4"

X32

30Agent Nesbitt intentionally misrepresents the amount of the campaign contribution. Supra Part III.

31Supra SOF, 84-85.

32Supra SOF, II.A, II.C; see also SOF, 72.


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X35

LO" A77,'/3*5 ., ')7)36.4 6',F3/)/ =0 8&'7 9)*4,*: =).-))*&=,1. 8&0 ,2 LMMI &*/ 91(0 ,2 LMMI: 8&'; )*.4 >&/) =0 8&'7

9)*4,*: 8&'7 9)*4,* 6&3/ 2,' .%)> ., 4.&0 &. .%) (1N1'0 ')4,'.3*7(1/3*5 6&03*5 2,' .%)3' >&44&5)4: 5,(2: 2,,/: &*/ 7(,.%3*5"8&';


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X37

LT" 8&'7 9)*4,* .,(/ ,.%0c&-4,*J4 F&(1) ., %3> -&4 %34 7(,4) 2'3)*/4%36 -3.% 8&';,.%0 c&-4,* 2,'8&'; ?8&'7 9)*4,*C &. ])(37&* P3((" 8&'7 9)*4,*.,(/ _)- Y,'; &*/ c,4 A*5)()4" 8&'7

9)*4,* .,(/ .%&. %) -&*.)/ ., >)). %34 =143*)44 &44,73&.)4 ., 4));21*/3*5 2,' %34 @*3.)/


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X42

X43

39Mr. Shurtleff expressly denies making the false statements attributed to him in this paragraph.

40Supra SOF, II.A, II.C; see also SOF, 77-78, 145-149.





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X44

44Agent Nesbitt does not include any reference to an explanatory email from Mr. Wadley to Mr. Donner.


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X46

45Supra SOF, II.A, II.C.

46SupraSOF, IV; see also SOF, 105.


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X63

X64

60SupraSOF, V; see also id. SOF, 111.

61Infra note 56.

62As discussed throughout the Brady Motion and Exhibit A, Mr. Shurtleff seeks a wealth of Brady informationrelating to allegations involving Mr. Johnson and Senator Harry Reid, both of whom Agent Nesbitt referencesthroughout the search warrant affidavits.

63Supra SOF, VI.D; see also SOF, 131.

64Supra SOF, VI.D; see also SOF, 139.


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X69

X70

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X71

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CERTIFICATE OF SERVICE

I hereby certify that, on the 24th day of June 2016, a copy of the foregoing was filed and servedvia electronic notification on the following:

Troy S. RawlingsDavid M. ColeDavis County District Attorney800 West State StreetFarmington, Utah 84025

Simarjit S. GillChou Chou CollinsByron Fred BurmesterSalt Lake County District Attorney111 East Broadway, Suite 400Salt Lake City, Utah 84111

/s/ Nathanael J. Mitchell

shurtleff exhibit b — 6/24/16

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