TROY RAWLINGS, Bar No. 6969 Davis County Attomey Special Assistant Utah Attorney General v P.O. Box 618 Farmington, UT 84025 Ph/ 801-451-4300 Fx/ 801-451-4348 IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT IN AND FOR THE COUNTY OF SALT LAKE, STATE OF UTAH THE STATE OF UTAH STATE OF UTAH MOTION TO Plaintiff, DISMISS AMENDED INFORMATION vs. Case No. 141907720 MARK LEONARD SHURTLEFF Judge: Elizabeth A. Hruby-Mills Defendant. DOB: 08/09/1957 ‘The State of Utah, by and through Special Assistant Attorney General Troy Rawlings, hereby moves this Honorable Court to dismiss the June 15, 2015 Amended. Information against defendant Mark Leonard Shurtleff. This Motion to Dismiss is based on the following: 1. Cooperation Agreement. With respect to all Counts, due to a cooperation agreementbetween the State of Utah and defendant Mark L. Shurtleff. To date, defendant Shurtleff has provided significant and important information to the State of Utah and will continue to do so, even testimony as needed. Mr. Shurtleff tried to assist the United States Government on multiple occasions, although the Department of Justice disputes this fact. Mr. Shurtleff attempted to assist the United States Government when wearing a wire in 2007-08 and again when reporting crimes with respect to a United States Senator to both the US Attorney's Office, District of Utah and the local office of the FBI on November 2 and November 9, 2012 respectively. Mr. Shurtleff also followed up with others in Washington DC. What became of his efforts? Nothing at the federal level. . McDonnell. With respect to Counts I, Il, IV, V and VI, the State of Utah’s view concerning the impact of the United States Supreme Court's June 27, 2016 decision in McDonnell vs United States, 519 U.S. __ 2016 is persuasive. The United States Supreme Court, in vacating the conviction of former Virginia Governor Robert McDonnell, blatantly indicated that “{t]here is no doubt that this case is distasteful; it may be worse than that.” However, despite that acknowledgment, the Supreme Court significantly narrowed the scope of the “official act” element of the federal bribery statute in question and included language that directly implicates a potential constitutional issue / problem (vagueness) if such a law [like Utah’s Bribery and Gift Statutes) is not restricted in meaning and scope, as the United States Supreme Court did in McDonnell. Due to the significant narrowing of the chargeable elements and conduct allowed by the United States Supreme Court, which the State of Utah believes it mustaccept and adhere to in interpreting and applying analogous provisions in the Utah Code, specifically including the factual and constitutional issues raised in the June 27, 2016 McDonnell decision, the State of Utah moves to dismiss Counts 1, I, IV, V and VIl of its June 15, 2015 Amended Information against defendant Mark L. Shurtleff. 3. Brady/ Giglio / Speedy Tria! - applied prospectively with respect to the pending date, The State of Utah's inability to provide all requested and required Brady / Giglio material in time for the defendant to prepare for the coming trial in October. Significant items remain outstanding and will likely never be obtained by the State of Utah to meet its obligations to defendant Shurtleff under Brady v, Maryland, 373 U.S. 83, Giglio v. United States, 405 U.S. 150 and the progeny developed under both.' Certainly not in time for trial. The State cannot credibly represent to this Court it will be able to obtain additional material even if given more time, Some of the items related to key witnesses, as well as impeachment and Brady defense theories, are simply not available to the State of Utah or the defendant. The United States Government cites Touhy regulations, privilege, or the work product doctrine. It appears some items sought do not even exist anymore.’ An example: obtaining and producing evidence of every kind, including all recordings made by key witness Jeremy Johnson of himself, Mark Shurtleff, John Swallow and members of the United States Attomey’s Office, particularly Brent Ward. Mr. Ward is the United States DOJ Official Mark L. Shurtleff first reported the possible bribery of a United States Senator by John * see Kent R. Hart & Troy Rawlings, The Need for Legislation to Reform Brady Practices in Utah: Requiring Prosecutors to Disclose All Favorable Evidence to the Defense, 2 UTAH J. CRIM. L. 32, 32-33 (2016), ? See State v. Tiedemann, 2007 UT 49.Swallow and Jeremy Johnson to. Brent Ward was the same man John Swallow wanted to bring into the Utah Attorney General's Office to prosecute sex offenses based on MRI brain scan technology. The same man involved in the plea deal with Jeremy Johnson that blew up in United States District Court and that arguably would have protected John Swallow. The same man Utah attorney ‘Travis Marker provided a declaration about affirming that John Swallow personally, at the Utah State Capitol, indicated to Marker that for $120,000 Jeremy Johnson may have more options open up in the case Brent Ward was prosecuting Johnson for. The same Brent Ward who withdrew from the Jeremy Johnson prosecution the very day the Travis Marker $120,000 declaration was presented to a significant third person in a position of authority. All of which is relevant to a significant defense theory Mr. Mark Shurtleff was entitled to explore. ‘The State of Utah informed the United States Department of Justice that if material was not produced, dismissal may be the end result. The State of Utah tried. Hard. (See, among other efforts, the State of Utah’s Motion to Compel the Federal Government). It did not work. While a significant quantity of items was produced, it is what was not produced and will not be produced that matters to this defendant. The State of Utah adamantly rejects the defendant’s assertion in his Motion to Dismiss that any delay is the fault of the State of Utah. It is a preposterous and disingenuous notion to fault the State for pursuing the defendant's constitutional right to Brady / Giglio material with the encouragement of the defendant himself. However, the constitutions of the United States and theState of Utah protect the accused. The State prosecutor assigned to the Mark L. Shurtleff case took an oath to uphold both constitutions, not to be deferential to the United States Department of Justice. It does not matter how high profile a case may be, which branch of the government is at fault, or how many people will be disappointed and angry that the State of Utah, by and through Troy Rawlings, determined to dismiss. There are no constitutional exceptions allowing a prosecutor to move forward based on effort, time investment, public sentiment, criticism, people not liking or accepting the decision, or the profile of the defendant. When a prosecutor determines, for reasons based on fact or law, including constitutional provisions, that there is no longer a reasonable probability of conviction, the case is over. When the government does not perform or produce as constitutionally required, the burden of that failure lies with the government, not the defendant. That is the way ‘That is the way it should be. Note concerning Brady/Giglio. The United States Attomey’s Office, District of Utah is correct. But it works both ways, not just when the federal government is taking material from a State case. “The United States Department of Justice, U.S. Attorneys’ Manual, Title 9, Section 2052 summarizes this well, which analysis also applies to State prosecutions: Itis well-settled that a prosecutor must search at least the files within the prosecutor's own office for Brady material. Giglio, 405 U.S. at 154. That affirmative obligation also applies to the files of the investigative and other prosecutorial agencies that comprise the "prosecution team” in a given case. United States v. Antone, 603 F.2d 566 (Sth Cir. 1979). Prosecutors must beaware that the scope of their duty to search is not measured by that of the prosecutor's personal knowledge. Knowledge of discoverable information unknown to the prosecutor but known to a law enforcement agent on the prosecution team may be imputed to the prosecutor. United States ex rel Smith v. Fairman, 769 F.2d 386, 391-92 (7th Cir. 1985) (knowledge of police ballistic report reflecting inoperability of gun defendant ...charged with shooting at police officers imputed to prosecutor); Cary v. Duckworth, 738 F.2d 875,878 (7th Cir. 1984) (knowledge of cooperation agreement between informant/witness and DEA agents imputed to prosecutor). Succinctly and extremely well-articulated in explaining taking material from the State of Utah vs. Mark Leonard Shurtleff case: “{rJegardless of whether information is sought from a classified source, third party or another governmental agency not associated with the prosecution team, prosecutors seek such information to comply with the general legal requirements of discovery dictated by Brady and its progeny. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 USS. 150 (1972) (emphasis added).” John W. Huber, United States Attomey; Robert C. Lunnen, Assistant United States Attorney — June 25, 2015 “MOTION FOR IN CAMERA REVIEW OF POTENTIAL DISCOVERY, AND FOR PROTECTIVE ORDER” filed in the United States District Court District of Utah, Central Din States of America v. Jeremy Johnson, et al. Case No. 2:11-CR-501 DN.” sion in United 4, Insufficient Evidence. With respect to Count VI in particular, the State also moves to dismiss based on a separate and distinct reason, insufficiency of evidence to support a unanimous verdict of guilt beyond a reasonable doubt. The defendant and counsel have provided alternative and potentially innocent explanations for the conduct charged in this count.5. Prejudicial Publicity. The State of Utah also expresses concern related to pretrial publicity and the defendant's right to a fair trial. Candidly, the State of Utah may likely “survive” a motion to dismiss on this issue, but the State is not confident enough on that, combined with the other problems briefly addressed in this motion, to waste taxpayer money doubling down on that bet. Why? Mr. Shurtleff high profile has generated publicity at every turn and in every forum imaginable. The problem? Not all items in the public discourse are fully accurate when actual evidence is juxtaposed. The State is troubled by this dynamic. A singular illustrative example is the narrative that the defendant was involved in and running a racketeering scheme. See the State of Utah’s November 19, 2014 Motion to Dismiss Count I, Racketeering, Without Prejudice. That particular motion cited and relied upon State ». Bradshaw, 99 P.3d 359 (Utah App. 2004) and State v. Bell, 770 P.2d 100 (Utah 1988). Facts learned subsequent to that motion further to support the decision to dismiss and the charge was never tefiled. However, the public impression does remain. Justice Sutherland, in speaking of a prosecutor's obligation when writing the opinion in Berger v. United States, 295 U.S. 78 (1935) penned this: “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Sometimes the face of justice is not what many want it to be. Constitutional concepts get erroneously characterized as technicalities. Today, constitutional principles protect Mark L. Shurtleff. On another day, they may protect someone else. Attimes, justice requires the prosecutor know when to stand down. We are at that time. ‘Wherefore, based on the above and in the interests of justice, the State of Utah respectfully requests that this Court enter an Order and grant the State Of Utah’s Motion to Dismiss the June 15, 2015 Amended Information against defendant Mark L. Shurtleff. DATED this 18" day of July, 2016: is/ Troy Rawlings Troy S. Rawlings Davis County Attorney Special Assistant Attorney General CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing STATE OF UTAH’S MOTION TO DISMISS THE AMENDED INFORMATION was served upon the following, by submission of the document for electronic filing, on July 18, 2016: RICHARD A. VAN WAGONER (4690) SAMUEL ALBA (0031) MAX WHEELER (3439) NATHANAEL J. MITCHELL SNOW, CHRISTENSEN & MARTINEAU 10 Exchange Place, Eleventh Floor Post Office Box 45000 Salt Lake City, Utah