MAX D.

WHEELER (3439)
RICHARD A. VAN WAGONER (4690)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, Eleventh Floor
Post Office Box 45000
Salt Lake City, Utah 84145
Telephone: (801) 521-9000

Attorneys for Defendant

IN THE THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH






STATE OF UTAH,

Plaintiff,

vs.

MARK L. SHURTLEFF,

Defendant.


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MEMORANDUM IN SUPPORT OF
MOTION TO VERIFY THAT THE
SHURTLEFF CASE HAS NOT BEEN
CONSOLIDATED WITH THE EARLIER-
FILED SWALLOW CASE (AND TO
STRIKE FROM THE CAPTION THE
CHARACTERIZATION OF MR.
SWALLOW AS MR. SHURTLEFFS CO-
DEFENDANT)



Case No. 141907720

Judge: Elizabeth A. Hruby-Mills


MARK L. SHURTLEFF submits his Memorandum in Support of Motion to Verify that
the Shurtleff Case has not been Consolidated with the Earlier-Filed Swallow Case.
I. INTRODUCTION AND SUMMARY
The Salt Lake County District Attorney (SLCDA) emphatically refuses even to
consider severing the Shurtleff and Swallow prosecutions, if at all, unless and until Defendants
are ordered to stand trialafter the preliminary hearing. The States position is based on a false
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presumptionthat the cases are in fact joined or consolidated--and on a fundamental
misunderstanding of the effect of its own course of action. Moreover, the States position seeks
to perpetuate a myth the SLCDA has tried to create throughout the investigation of the case.
1

The cases are not joined, were never joined and cannot be joined. In violation of the Utah
Criminal Code, the SLCDA presumes these Defendants are joined in a single prosecution simply
because the State cleverly but nominally mischaracterized each Defendant as the others co-
defendant in the caption of the Informations. That nominal mischaracterization is the sole basis
on which the State relies for its misdirection. The characterization of Mr. Swallow as Mr.
Shurtleffs co-defendant should be stricken from the Information.
The States flawed presumption seeks to elevate formthe nominal
mischaracterizationover the substance of the charges and the method the State used to charge

1
From the outset, the SLCDA has sought to mislead the public, and now possibly the Court, into
believing these cases are joined and would be tried together. The SLCDA has prejudiced Mr.
Shurtleff with his relentless media campaign and the endless reports conjoining Mr. Shurtleff's
name with allegations that are exclusive to Mr. Swallow and painting Mr. Shurtleff with the
same prejudicial broad brush, thereby misleading the public and potential jury pool into
believing both men must be responsible for the alleged motives and conduct of the other as part
of some grand conspiracy. The respective Informations and Declarations of Probable Cause
clearly demonstrate otherwise.

The SLCDA made multiple public statements that he was conducting a joint investigation of
Messrs. Swallow and Shurtleff. The SLCDA obtained a joint warrant, supported by a joint
affidavit (which included separate and unrelated allegations), to search and seize Messrs.
Shurtleffs and Swallow's telephone and email records. Messrs. Shurtleffs and Swallows
homes were searched, based on a similar affidavit, on the same date and at the same time.
Messrs. Shurtleff and Swallow were charged on the same date and arrested, booked and released
at approximately the same time. They appeared in court on the same date and at the same time.

The charade continues. In conversations with Mr. Swallows counsel the SLCDA has stated
emphatically that the cases are joined and must be treated as one, at least through the preliminary
hearing. Recently the SLCDA would not even agree to Mr. Swallows request to continue the
next hearing (for additional time to review discovery) unless Mr. Shurtleff jointly agreed to the
continuance to the same date and time.
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the Defendants. Defendants are charged in separate Informations with separate counts pursuant
to separate Declarations of Probable Cause alleging separate facts all under separate case
numbers. The State has never moved to join or consolidate the cases, the Defendants or any
Counts. To do so now would be seriously premature, not to mention a futile gesture. The Utah
Criminal Code requires that unless and until Defendants are ordered to stand trial on the
separately-filed Informations, the Court must treat the cases against Messrs. Shurtleff and
Swallow as distinct and separate from the other. See Utah Code Ann. 77-8a-1(3)(a). Only
thereafter could the Court even consider trying the Defendants together.
2

Where defendants are charged in separate Informations, as here, the court may later order
the cases tried together if the offenses, and the defendants . . . could have been joined in a
single indictment or information. Id. 77-8a-1(3)(a) (emphasis added). A trial can occur only
if and after defendants are ordered to stand trial, so joinder of such separately-filed Informations
before a bindover is premature and improper under Utah law. More specially, Utah law does not
recognize any right in the State both (1) to charge the defendants in separate Informations with
separate Counts based on separate Declarations of Probable Cause alleging separate facts all
under separate case numbers and then (2) simply to assume the Court--on the States whim
shall treat the Defendants as joined in the same case even before they are ordered to stand trial.

2
Utah law permits multiple defendants to be charged in a singleinformation if they are alleged
to have participated in the same act or conduct or in the same criminal episode. Utah Code
Ann. 77-8a-1(2)(b) (emphasis added). If the State met such a burden, a joint prosecution
against two or more defendants could proceed from the outset (subject to a motion to sever). The
State wisely chose not to charge these Defendants in a single information because in the
separately-filed Informations the Defendants are not alleged to have participated in the same
act or conduct or in the same criminal episode. While the State attempts to lump the
Defendants and the separately-filed Informations into a single prosecution from the outset by
characterizing each Defendant nominally as the others co-defendant, Defendants Shurtleff
and Swallow are not jointly charged in even one single offense.

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Even assuming these Defendants ultimately are ordered to stand trial--or assuming the
Court somehow interprets the statutory language tried together to allow trial courts discretion
to hold joint preliminary hearings in separately-filed cases, the Defendants here cannot be tried
together because they could [not] have been joined in a single indictment or information. Id.
(emphasis added). The analysis of whether the Court could try the Defendants together must
examine the same issues that arise in a motion to sever (mis)joined defendants, a two-step
analysis. First, the Court must determine whether the defendants were or could be properly
joined in the first instance. If not, the analysis ends. Second, assuming the defendants were or
could be properly joined in the first instance, the Court must determine whether the defendants
nonetheless should not be joined or must be severed due to prejudice that may result from
joinder. Joinder is reviewed for correctnessjoinder is either correct or incorrect as a matter of
law. Severance is reviewed for abuse of discretionassuming joinder is correct as a matter of
law, severance is based on judicial discretion in light of prejudice. See, e.g., State v. Lamb, 2013
UT App 5, 6, 294 P.3d 639 (for general discussion of joinder and severance of charges under
Utah Code Ann. 77-8a-1); State v. Hildreth, 2010 UT App 209, 30 238 P.2d 444 (citing and
discussing State v. Burke, 2011 UT App 168, 256 P.3d 1102).
First, the Defendants were not and could not have been joined in a single prosecution
under Utah Code Ann. 77-8a-1, notwithstanding the States nominal characterization of them
as the others co-defendant. The State chose to charge Messrs. Shurtleff and Swallow in
completely independent Informations with completely independent Counts pursuant to
completely independent Declarations of Probable Cause alleging almost entirely independent
facts all under completely separate, non-consecutive case numbers. That ship has sailed. Mr.
Shurtleff is charged with ten counts and Mr. Swallow thirteen. Mr. Shurtleff is charged with
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felonies. Mr. Swallow is charged with felonies and misdemeanors. The dates of alleged
criminal activity are mutually exclusive as between virtually every Count in the respective
Informations. The State does not appear to allege that a single count in the respective
Informations arises from the same act or conduct or . . . same criminal episode, Utah Code
Ann. 77-8a-1, discussed below.
Simply stated, among the Informations most glaring deficiencies
3
is the States flawed
attempt to misjoin or mis-consolidate the Defendants simply by nominally characterizing each as
the others co-defendant in the face of completely-separate-and-independent-everything-else.
Such joinder would violate the Utah Criminal Code as a matter of law and infringe Mr.
Shurtleffs right to due process under the Fifth Amendment to the United States Constitution and
Article 1, Sec. 7 of the Utah Constitution. See, e.g., Utah Code Ann. 77-8a-1 (joinder of

3
The Information is so vague and imprecise, Mr. Shurtleff is not put on constitutional notice of
the allegations constituting the factual basis for the charges against him. The best Mr. Shurtleff
can do is identify the dates of the alleged misconduct as set forth in the separate Counts then go
to the Declaration of Probable Cause and try to match them up. Neither the Information nor the
Declaration of Probable Cause even attempts to identify which facts alleged therein purport to
support which Counts in the Information. Mr. Shurtleff is required to guess.

Typically, prosecutors include in their probable cause statements the specific counts as identified
in the information, the statutory elements thereof and then the specific alleged facts which the
affiant affirms support and satisfy each statutory element of the criminal statute. Such precision
is constitutionally required so the defendant is put on proper notice and can properly defend
against the specific charges and the precise facts on which those charges purport to be based.
Such precise commitment to the facts it alleges to support the criminal charges is also required to
prevent the prosecution from turning into a moving target and depriving the defendant
constitutionally sufficient notice.

Here, the Information simply identifies ten Counts with statutory language from each section of
the criminal code, but identifies no supporting facts other than a date or loose range of dates.
The Declaration of Probable Cause then makes no reference whatsoever to any specific Count,
the specific statutory language or the specific elements of each criminal charge from the
Information which the alleged facts purport to satisfy. As the Court will see, putting them
together in some meaningful way requires constitutionally suspect guesswork.

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offenses and defendants); id. 76-1-401(single criminal episode); see also cf. Rule 8(a) and (b),
Federal Rules of Criminal Procedure.
4

Second, even if the Defendants were or could have been properly charged jointly as to
any single count or counts under Utah Code Ann. 77-8a-1(2)(b), the cases could not be or
could not remain joined due to resulting prejudice. To the extent the State may attempt to claim
that any charge against both Defendants arises from a single criminal episode and that they were
or could be properly charged together, the State creates serious new problems for itself and
prejudice to Mr. Shurtleff: infringement of Mr. Shurtleffs Sixth Amendment right of
confrontation, as explained in Bruton v. United States, 391 U.S. 123 (1968) and its progeny (see
generally Right to Severance Where Codefendant has Incriminated Himself, 54 A.L.R.2d 830),
and inadmissible hearsay. Section 77-8a-1(4)(b) anticipates the likelihood of this problem: . . .
In ruling on a motion by defendant for severance, the court may order the prosecutor to disclose
any statements made by the defendants which he intends to introduce in evidence at the trial.
(Emphasis added.) If the State really wishes to argue that Defendants were or could be properly

4
Even if these were not extraordinarily high-profile cases of which every aspect has been and
will be publicly scrutinized, joinder would be improper and in violation of Mr. Shurtleffs right
to due process as a matter of law. Given the public attention the cases have garnered and will
continue to generate, the prejudice of a joinder would compound exponentially.

Given, for example, the SLCDAs press conference at the local FBI offices to announce the
criminal filings--in which that prosecuting agency sought to prejudice the Defendants to the
public (and potential jury pool) in clear violation of their ethical duties as prosecutors, see Utah
Rules of Professional Conduct 3.6 and 3.8--the attempted misjoinder of these Defendants can
only be the calculated effort to continue to prejudice them to the public (and potential jury pool)
by seeking to conjoin and conflate the alleged (unrelated) conduct and alleged (unrelated)
violations in the respective Informations.

The dark irony--the Salt Lake County DAs stepping out of his role as figurehead/administrator
to personally direct an investigation and prosecution that questions the motives of Mr. Shurtleff
for allegedly having stepped out of his role as a figurehead/administrator in connection with
State v. Jenson--is not lost on Mr. Shurtleff.
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joined in one or more counts and should be tried together, the Court should order the State
immediately to identify all statements made by the defendants which [it] intends to introduce in
evidence at the trial. Only that way could the Court examine and evaluate the extent of the
Bruton and hearsay problemsthe prejudicein the proper exercise of its discretion.
5

Even if defendants were or could have been properly joined as to any single count or
counts, Utah law is abundantly clear that courts must resolve doubts concerning the prejudice to
a defendant in connection with such joinder in favor of the defendants. See, e.g., State v. Telford,
940 P.2d 522, 525-26 (Ut. Ct. App. 1997) (Utah Code provides that when a defendant is
prejudiced by joinder of trials, the court shall ... grant a severance of defendants, or provide
other relief as justice requires. Utah Code Ann. 77-8a-1(4)(a) (1995). In interpreting this
provision, the Utah Supreme Court has held that [d]oubts concerning prejudice should be
resolved by the trial court in favor of a defendant. State v. Collins, 612 P.2d 775, 777 (Utah
1980). The [S]upreme [C]ourt has further stated that, although trial courts appear to be
reluctant to grant severance, that reluctance is ill-advised and in the long run risks greater
expenditure of judicial resources. State v. O'Brien, 721 P.2d 896, 898 (Utah 1986). Thus, if
joint defendants have defenses that appear to be inconsistent with or to obstruct or impede each
other, trial courts must carefully examine severance requests and grant severance when there

5
Hypothetically, say Mr. Swallow made a confession, admission or other extrajudicial self-
incriminating statement that comes into evidence as an admission against his interest under Rule
801(d)(2), Utah Rules of Evidence, but which purports to implicate Mr. Shurtleff in the
commission of some crime. That scenario creates two significant problems: first, such a
statement constitutes inadmissible hearsay to the non-declaring defendant, Mr. Shurtleff, see
Utah Rules of Evidence, 801(c); second, the non-declaring defendant, Mr. Shurtleff, cannot
cross-examine the hearsay statements (unless Mr. Swallow testifies), all in violation of his right
of confrontation under the Sixth Amendment to the United States Constitution and Article 1, Sec.
12, of the Utah Constitution.

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is any doubt as to prejudice. Id.) (emphasis added); State v. Velarde, 734 P.2d 440, 444-45
(Utah 1986) (whether severance is granted depends upon whether the trial court determines that
prejudice to the defendant outweighs considerations of economy and practicalities of judicial
administration, with doubts being resolved in favor of severance) (emphasis added).
The Court should strike from the pleading caption the reference and characterization of
Mr. Swallow as Mr. Shurtleffs co-defendant, and should otherwise affirm that Mr. Shurtleffs
case shall remain separate from and proceed independently of Mr. Swallows.
II. STATEMENT OF FACTS
1. On July 15, 2014, the State of Utah charged Mr. Swallow by Information in Case
No. 14197718 with thirteen Counts.
2. The Swallow Information is supported by its own Declaration of Probable Cause.
3. Also on July 15, 2014, the State of Utah Charged Mr. Shurtleff by Information in
Case No. 14197720 with ten Counts.
4. The Shurtleff Information is supported by its own Declaration of Probable Cause.
5. The following chart summarizes the chronology and character of the Counts as
alleged in the respective Informations:
SWALLOW INFORMATION SHURTLEFF INFORMATION
October 1, 2008 October 25, 2013 Pattern
of Unlawful Activity (Count 1F2)


October 31, 2008 January 8, 2009
Receiving or Soliciting a Bribe (Count 4F2)
January 1, 2009 May 1, 2010 Accepting a
Gift (Count 6F2)
January 8, 2009 May 6, 2013 Pattern of
Unlawful Activity (Count 1F2)
May 4-5, 2009 Receiving or Soliciting a
Bribe (Count 2F2)
May 8, 2009 Tampering with a Witness
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(Count 8F3)

June 5-7, 2009 Receiving or Soliciting a
Bribe (Count 3F2)

June 1, 2010 October 31, 2010 Accepting a
Gift (Count 2F2)

September 1, 2010 December 5, 2012
Receiving or Soliciting a Bribe (Count 5
F2)


February 2011 Accepting A Gift (Count 5
F2)

March 16, 2011 January 6, 2014 Receiving
or Soliciting a Bribe (Count 4F2)

June 1, 2011 July 31, 2011 Receiving or
Soliciting a Bribe (Count 3F2)


February 2012 Tampering with Evidence
(Count 9F3)

March 9, 2012 March 15, 2012 --
Falsification or Alteration of Government
Record (Count 12--MB)

March 9, 2012 March 15, 2012 Failure to
Disclose Conflict of Interest (Count 13--
MB)

May 2, 2012 Tampering with Evidence
(Count 7F3)

June 2012 Tampering with Evidence (Count
8F3)




July 19, 2012 Tampering with Evidence
(Count 9F3)

July 20, 2012 July 30, 2012 Misuse of
Public Money (Count 10F3)


September 2012 May 2013 Accepting
Employment that would Impair Judgment
(Count 7F2)

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March 12, 2013 Obstructing Justice
(Count 11F3)


May 6, 2013 Obstructing Justice (Count
10F3)

October 15, 2013 October 25, 2013 False
or Inconsistent Material Statements (Count
6F2)


SWALLOW CHARGES
6. Concerning Swallow Count 1, the alleged pattern purported to begin the year
before that alleged in Shurtleff Count 1, and purported to extend some five months beyond that
alleged in Shurtleff Count 1. In order for the Court to discern whether the underlying
unlawful activity purporting to constitute the respective patterns bore any resemblance to
the other for purposes of proper joinder, the Court must compare and contrast the remaining
counts in the respective Informations. In that light as explained below, Swallow Count 1 does
not allege that Messrs. Shurtleff and Swallow participated in the same act or conduct or in the
same criminal episode, Utah Code Ann. 77-8a-1 (emphasis added), for purposes of joinder.
7. Concerning Swallow Count 2, the Swallow Declaration of Probable Cause fails
to identify by specific dates--June 1, 2010-October 31, 2010--any allegations that relate to
accepting a gift.
6
The closest such claim Mr. Shurtleff can discern could arise from 24-25 of
the Swallow Declaration of Probable Cause concerning allegations relating to Mr. Swallows
having used Mr. Johnsons personal aircraft for travel to and from St. George, having used Mr.
Johnsons houseboat on Lake Powell for two nights, and having received some $23,500 from

6
The same fundamental pleading and notice deficiencies that exist in the Shurtleff Information
are found in the Swallow Information.

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RMR Consulting, which allegations have no relationship to Mr. Shurtleff. No corresponding
count with the same dates even appears in the Shurtleff Information. As to Swallow Count 2
Messrs. Shurtleff and Swallow are not alleged to have participated in the same act or conduct
or in the same criminal episode, Utah Code Ann. 77-8a-1 (emphasis added), for purposes of
joinder.
8. The Swallow Declaration of Probable Cause fails to identify by specific dates
September 1, 2010-December 5, 2012or facts any allegations that serve as a basis for
probable cause for Swallow Count 5. Mr. Shurtleff would have to guess concerning which, if
any, paragraphs from the Swallow Declaration of Probable Cause purport to provide a basis for
this charge. Regardless, no corresponding count with the same dates even appears in the
Shurtleff Information. As to Swallow Count 5 Messrs. Shurtleff and Swallow are not alleged
to have participated in the same act or conduct or in the same criminal episode, Utah Code
Ann. 77-8a-1 (emphasis added), for purposes of joinder.
9. Swallow Count 4 could relate to facts alleged in 64 et seq. of the Swallow
Declaration of Probable Cause concerning what appears to claim that Timothy and Jennifer Bell
hosted an August 17, 2012 campaign fundraiser for Mr. Swallow in connection with his
campaign for Utah Attorney General. At best the allegations presume the fundraiser must have
constituted some quid pro quo for Mr. Swallows having met with Bank of America attorneys
and lobbyists to discuss the Bell lawsuit against Bank of America. Paragraph 67 of the Swallow
Declaration of Probable Cause alleges Mr. Shurtleff attended that meeting, but makes no claim
of any quid pro quo as between him and the Bells. Rather, Shurtleff Count 7 appears to allege
that Mr. Shurtleff agreed to withdraw the States intervention in the Bank of America lawsuit in
exchange for employment with one of what must be hundreds of law firms throughout the
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United States that happen to represent Bank of America. Hence, the allegations purporting to
support Swallow Count 4, Receiving or Soliciting a Bribe, have no relationship to Mr.
Shurtleff. As to Swallow Count 4 Messrs. Shurtleff and Swallow are not alleged to have
participated in the same act or conduct or in the same criminal episode, Utah Code Ann. 77-
8a-1 (emphasis added), for purposes of joinder.
7

10. Concerning Swallow Count 3, the Swallow Declaration of Probable Cause fails
to identify by specific dates--June 1, 2011-July 31, 2011--any allegations that relate to receiving
or soliciting a bribe. The closest such claim Mr. Shurtleff can discern could arise from 26 of
the Swallow Declaration of Probable Cause concerning Mr. Swallows having informed Travis
R. Marker in the summer of 2011 that if Johnson could provide SWALLOW approximately
$120,000, there could be more options available to Johnson for resolving [Johnsons] criminal
case, which allegations have no relationship to Mr. Shurtleff. No corresponding count with the
same dates even appears in the Shurtleff Information. As to Swallow Count 3 Messrs. Shurtleff
and Swallow are not alleged to have participated in the same act or conduct or in the same
criminal episode, Utah Code Ann. 77-8a-1 (emphasis added), for purposes of joinder.
11. Swallow Count 12 could relate to facts alleged in 61-63 of the Swallow
Declaration of Probable Cause concerning Mr. Swallows filing his Candidate financial
Disclosure or Conflict of Interest Form with the Lieutenant Governors Office when he declared
his candidacy for Utah Attorney General, which allegations have no relationship to Mr.
Shurtleff. No corresponding count with the same dates even appears in the Shurtleff

7
The allegations as between Mr. Swallow and Mr. Shurtleff relating to Bank of America may
well be inconsistent and the defenses could as the result be antagonistic, revealing additional
problems with the States attempt to misjoin these defendants and charges.

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Information. As to Swallow Count 12 Messrs. Shurtleff and Swallow are not alleged to have
participated in the same act or conduct or in the same criminal episode, Utah Code Ann. 77-
8a-1 (emphasis added), for purposes of joinder.
12. Swallow Count 13 could relate to facts alleged in 61 of the Swallow
Declaration of Probable Cause concerning Mr. Swallows filing his Candidate financial
Disclosure or Conflict of Interest Form with the Lieutenant Governors Office when he declared
his candidacy for Utah Attorney General, which allegations have no relationship to Mr.
Shurtleff. No corresponding count with the same dates even appears in the Shurtleff
Information. As to Swallow Count 13 Messrs. Shurtleff and Swallow are not alleged to have
participated in the same act or conduct or in the same criminal episode, Utah Code Ann. 77-
8a-1 (emphasis added), for purposes of joinder.
13. Swallow Count 7 could relate to facts alleged in 29-30 of the Swallow
Declaration of Probable Cause relating to Mr. Swallows alleged retroactive creation of invoices
for $23,500 for services rendered in connection with the Chaparral cement project which
allegations have no relationship to Mr. Shurtleff. No corresponding count with the same date
even appears in the Shurtleff Information. As to Swallow Count 7 Messrs. Shurtleff and
Swallow are not alleged to have participated in the same act or conduct or in the same
criminal episode, Utah Code Ann. 77-8a-1 (emphasis added), for purposes of joinder.
14. Concerning Swallow Count 8, Mr. Shurtleff can find nothing in the Swallow
Declaration of Probable Cause that conceivably ties or relates to any June 2012 Tampering
with Evidence count as alleged in the Swallow Information. Hence no such allegation has any
relationship to Mr. Shurtleff--or to Mr. Swallow for that matter. No count, corresponding or
otherwise, with the same date even appears in the Shurtleff Information. As to Swallow Count
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8 Messrs. Shurtleff and Swallow are not alleged to have participated in the same act or
conduct or in the same criminal episode, Utah Code Ann. 77-8a-1 (emphasis added), for
purposes of joinder.
15. Swallow Count 9 could relate to facts alleged in 32 of the Swallow Declaration
of Probable Cause relating to Mr. Swallows alleged instruction to the Attorney Generals IT
department to wipe his State-issued laptop and his desktop computers, which allegations have
no relationship to Mr. Shurtleff. No corresponding count with the same date even appears in the
Shurtleff Information. As to Swallow Count 9 Messrs. Shurtleff and Swallow are not alleged
to have participated in the same act or conduct or in the same criminal episode, Utah Code
Ann. 77-8a-1 (emphasis added), for purposes of joinder.
16. Swallow Count 10 could relate to facts alleged in 33 of the Swallow
Declaration of Probable Cause relating to Mr. Swallows alleged instruction to the Attorney
Generals IT department to replace a broken glass screen on his home computer . . . at the
expense of the State of Utah. The cost of the glass screen was $196.85, which allegations have
no relationship to Mr. Shurtleff. No corresponding count with the same date even appears in the
Shurtleff Information. As to Swallow Count 10 Messrs. Shurtleff and Swallow are not alleged
to have participated in the same act or conduct or in the same criminal episode, Utah Code
Ann. 77-8a-1 (emphasis added), for purposes of joinder.
17. Swallow Count 11 could relate to facts alleged in 79 of the Swallow
Declaration of Probable Cause relating to FBI agents interview of Mr. Swallow in which he
allegedly provided numerous pieces of false information regarding the Jenson cases, campaign
donations, and gifts and/or bribes received by him, which allegations have no relationship to
Mr. Shurtleff. No corresponding count with the same date even appears in the Shurtleff
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Information. As to Swallow Count 11 Messrs. Shurtleff and Swallow are not alleged to have
participated in the same act or conduct or in the same criminal episode, Utah Code Ann. 77-
8a-1 (emphasis added), for purposes of joinder.
18. Swallow Count 6 could relate to facts alleged in 81 of the Swallow Declaration
of Probable Cause relating to Mr. Swallows alleged under-oath false or inconsistent
statements . . . regarding gold coins SWALLOW claimed to have sold, and gifts and/or bribes
SWALLOW solicited or received, which allegations have no relationship to Mr. Shurtleff. No
corresponding count with the same date even appears in the Shurtleff Information. As to
Swallow Count 6 Messrs. Shurtleff and Swallow are not alleged to have participated in the
same act or conduct or in the same criminal episode, Utah Code Ann. 77-8a-1, for purposes
of joinder.
III. ARGUMENT

Utah Code Ann. 77-8a-1, Joinder of Offenses and of Defendants, provides in relevant
part:
. . .

(2) . . . (b) Two or more defendants may be charged in the same indictment or information
if they are alleged to have participated in the same act or conduct or in the same criminal
episode.
8


8
Utah Code Ann. 76-1-401, defines "Single criminal episode":

In this part unless the context requires a different definition, "single criminal episode"
means all conduct which is closely related in time and is incident to an attempt or an
accomplishment of a single criminal objective.

Nothing in this part shall be construed to limit or modify the effect of Section 77-8a-1 in
controlling the joinder of offenses and defendants in criminal proceedings.

(Emphasis added.)

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(c) The defendants may be charged in one or more counts together or separately and all of
the defendants need not be charged in each count.

(d) When two or more defendants are jointly charged with any offense, they shall be tried
jointly unless the court in its discretion on motion or otherwise orders separate trials
consistent with the interests of justice.

(3)(a) The court may order two or more indictments or informations or both to be tried
together if the offenses, and the defendants, if there is more than one, could have been
joined in a single indictment or information.

(b) The procedure shall be the same as if the prosecution were under a single indictment
or information.

(4)(a) If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses
or defendants in an indictment or information or by a joinder for trial together, the court
shall order an election of separate trials of separate counts, grant a severance of
defendants, or provide other relief as justice requires.

(b) . . . In ruling on a motion by defendant for severance, the court may order the
prosecutor to disclose any statements made by the defendants which he intends to
introduce in evidence at the trial.

(Emphasis added.) See also cf. Rule 8(b), Federal Rules of Criminal Procedure.
9


Despite the myth the SLCDA sought to create in his media campaign by publicly
conjoining and conflating the alleged histories and conduct of Messrs. Swallow and Shurtleff,
the SLCDA charged Messrs. Swallow and Shurtleff in separate Informations with separate
counts pursuant to separate Declarations of Probable Cause alleging separate facts all under

9
Rule 8(b), Federal Rules of Criminal Procedure, provides:
(b) JOINDER OF DEFENDANTS. The indictment or information may charge 2 or more
defendants if they are alleged to have participated in the same act or transaction, or in
the same series of acts or transactions, constituting an offense or offenses. The
defendants may be charged in one or more counts together or separately. All defendants
need not be charged in each count.
(Emphasis added.)

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independent case numbers. The cases are not and were never joined for any purpose. A review
of the chronology and character of the Counts in the Informations establishes that the Defendants
are [not] alleged to have participated in the same act or conduct or in the same criminal
episode. Moreover, these Defendants could [not] have been joined in a single indictment or
information, so they could not be tried together. The States mischaracterization of Messrs.
Swallow and Shurtleff as each others co-defendant has no meaning or effect, other than to
expose its poorly-executed attempt at slight-of- hand.
IV. CONCLUSION

The Court should verify that the separately-filed cases against Messrs. Swallow and
Shurtleff are not consolidated and must proceed independently and should strike from the
Shurtleff Information the reference to Mr. Swallow as a co-defendant.
DATED this 4
th
day of September, 2014.

SNOW, CHRISTENSEN & MARTINEAU


/s/ Richard A. Van Wagoner
Richard A. Van Wagoner,
Attorneys for Defendant

-18-
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing MEMORANDUM IN
SUPPORT OF MOTION TO VERIFY THAT THE SHURTLEFF CASE HAS NOT BEEN
CONSOLIDATED WITH THE EARLIER-FILED SWALLOW CASE (AND TO STRIKE
FROM THE CAPTION THE CHARACTERIZATION OF MR. SWALLOW AS MR.
SHURTLEFFS CO-DEFENDANT) was served upon the following by submission of the
document for electronic filing on September 4, 2014:

Simarjit S. Gill
Chou Chou Collins
Byron Fred Burmester
Salt Lake County District Attorney
111 East Broadway, Suite 400
Salt Lake City, Utah 84111
Attorneys for Plaintiff

Troy S. Rawlings
Davis County District Attorney
800 West State Street
Farmington, Utah 84025



/s/ Richard A. Van Wagoner

2973413.1 / 026310.0001