SCOTT C, WILLIAMS (6687) Attomey for Defendant 43 East 400 South Salt Lake City, Utah 84111 ‘Telephone: (801) 220-0700 Facsimile: (801) 364-3232 sewlegal@amail.com CARA TANGARO (9197) Tangaro Law, P.C. 35 W. Broadway Suite 203 Salt Lake City, Utah 84101 Telephone: 801 673 9984 Fax: 801 606 7494 cara@tangarolaw.com Attorneys for John E. Swallow IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH STATE OF UTAH, REPLY TO STATE’S RESPONSE TO. DEFENDANT'S MOTION FOR STATUS CONFERENCE Plaintiff, vs JOHN E. SWALLOW, Case No, 141907718 Defendant, Honorable Elizabeth Hruby-Mills Defendant John F. Swallow, by and through his attorneys of record, provides the following memorandum in Reply to State’s Response To Defendant’s Motion For Status Conference, filed June 22, 2016, Defendant's original motion for a status conference sought to suspend briefing on the Motion to Dismiss in favor of conducting an evidentiary hearing that thedefense believes to be a necessary pre-requisite to a final determination of the issue, The State's present response memorandum reads more like a sur reply to the briefing done in relation to the Motion to Dismiss. However, the State has again objected to this Court conducting an evidentiary hearing in relation to the issue, This Court also recently issued a minute entry indicating that the parties should be prepared to argue the merits of the Motion to Dismiss at the hearing presently scheduled for July 13, 2016, apparently without first conducting an evidentiary hearing. The present memorandum provides a reply to the State's false claims that there are “no ‘genuine issues of fact,” and to reaffirm the defendant's position that he is entitled to an evidentiary hearing unless this Court grants the Motion to Dismiss based upon pleadings. MR. SWALLOW DENIES EVERY MATERIAL FACT OFFERED BY THE STATE IN ITS OPPOSITION TO THE MOTION TO DISMISS In his Reply To States Memorandum In Opposition To Defendant's Motion To Dismiss (Reply Memo”) Mr. Swallow repeatedly asserts that he did not and should not have to take the State's incredibly self-serving and counter intuitive factual claims as true. The defense stated that it therefor did not accept the truth of any material fact provided in connection with the State’s Response Memorandum. Further, the defense gave notice that it had already developed information and belief, both that affiants relied upon by the State were unreliable, and that mate | claims made by affiants were materially false, Additionally, the State provided absolutely no discovery in relation to its significant self-investigation, nor any materials related to the factual claims made by the various witnesses in the various affidavits, Mr. Swallow therefor immediately filed a Motion For Order Requiring Production Of Supplemental Discovery Related To State's Memorandum In Opposition To Defendant's Motion Tothat pleading is attached hereto as Exhibit A.) To date the State has provided virtually nothing in response to that request. Instead, incredibly, the State asserts that it can investigate itself, proffer the self:preserving results through affidavits of its biased and motivated agents, and then claim work product in refusing to provide Mr. Swallow with the reports of the investigation and the materials related thereto, See STATE’S RESPONSE TO DEFENDANT'S MOTION FOR ORDER REQUIRING PRODUCTION OF SUPPLEMENTAL DISCOVERY, filed 6/29/2016, (A copy is attached hereto as Exh B) Notwithstanding this history, the State holdly asserts in their response to the motion for status conference that “Defendant has not raised any genuine issue of fact.” As described above, the claim is patently false, It is also used by the State to again frantically press this Court to deny Mr. Swallow an evidentiary hearing and any meaningful opportunity to investigate the self serving claims ofits witnesses. Mr. Swallow desires to be confident that this Court will not be misled by the State's pleadings, and that this Court will agree that at the least Mr. Swallow has a right to discoverable materials in the course of an investigation into the State's claims, followed by an evidentiary hearing. However, especially given this Court's minute entry warning the parties to be prepared to argue the merits of the Motion to Dismiss on July 13, 2016, Mr. Swallow provides a number of non-exhaustive basic categories of reasons that this Court cannot rely on the verity of the factual proffers provided by the State. Agent Scott Nesbitt Lead case agent Scott Nesbitt is central to the attorney-client privilege issue, and apparently central to the State’s investigation and presentation in response to the issue. AgentNesbitt applied for under oath, and executed the search warrants that were used to obtain the attorney-client communications. He received the actual communications from the sourees-Google, Apple and Mr, Swallow’s electronic devices. He possessed the privileged communications after they were analyzed, provided them to the State, and, according to his Return to Search warrant, maintains custody of all of the evidence that was seized. Yet the State would have this Court believe Agent Nesbitt’s self-serving, career-saving claim that he didn’t see any of the approximately 12,000 images of privileged communications in the course of his extensive activities in the ease Agent Nesbitt cannot be believed. On prior occasions he has provided false and/or misleading information, and/or made material omissions in affidavits to the court regarding the investigation into this case-including in the very search warrant applications whereby he obtained the privileged communications now at issue. An extensive example of such activity is, referenced in the pleading recenily filed before this Court by defendant Mark Shurtleff in case number 141907720 titled MR.SHURTLEPF”S MOTION TO DISMISS FOR BRADY/GIGLIO AND ‘SPEEDY TRIAL VIOLATIONS AND MEMORANDUM IN SUPPORT, and detailed in Exhibit B thereto, as well as Exhibit P to Exhibit C. (The defendant hereby incorporates the contents of the Motion and its exhibits herein.) ‘The State was on notice of Agent Nesbitt’s perfidy long before the recent filing of the motion to dismiss in Mr. Shurtleff's ease, On October 15, 2015 Jeremy Johnson specifically told prosecutors Chou Chou Collins and Fred Burmester in person in a recorded interview that Agent Nesbitt had misled the magistrate and that it upset Mr. Johnson to see it, and he didn't want prosecutors to try to misleadingly manipulate his information in the way that Agent Nesbitt had.(See, e.g. excerpt from the interview attached hereto as Exhibit C.) Mr, Johnson has also provided a swom statement that Agent Nesbitt’s false and misleading tactics have been par for a course of conduct throughout an investigation designed not to seek the truth, but to invent a narrative that would support his own desired prosecution." For instance, Agent Nesbitt told Mr. Jonson that his interviews and cooperation endeavors would be rewarded with assistance in kind, and promised him that they would remain confidential, which ‘turned out to be a lie.? Agent Nesbitt set up that backdrop before and during his first meeting and interview with Mr. Johnson, and then encouraged Mr, Johnson to therefore feel free to color his testimony in favor of Agent Nesbitt’s theory of the case against Mr. Swallow. In order to cover his tracks, agent Nesbitt apparently either failed to preserve or actually destroyed a tape recording of the first interview’, and then misrepresented the contents of the interview in a later report. (See Al avit of Jeremy Johnson, attached hereto as Exhibit D.) Further still, the state has been put on notice of the unreliability of Agent Nesbitt’s sworn statements by attorneys for other individuals in relation to which he sought and received search warrants, For instance, on January 7, 2014, the attomey for Jason Powers notified Sim Gill that ' Tt must be kept in mind, as the State urges this Court to accept the claims of its agents without question or investigation, that these are agents that are so highly invested in the prosecution that they sought special permission to engage it on the state level after a full federal investigation determined insufficient basis to believe that Mr. Swallow committed a crime, Such a personal investment should give a fact finder pause in terms of potential bias and motive. > Agent Nesbitt ultimately provided all of Mr. Johnson’s interviews and cooperation information to supposedly conflicted United States prosecutors for use against Mr. Johnson in his federal prosecution, * If the present case is not dismissed on the present motion, Mr. Swallow will file ‘motion pursuant to State v, Tiedemann, 162 P.3d 1106 (Utah 1007). 5Agent Nesbitt had been at least reckless with regard (o his statements in an affidavit for a search ‘warrant of email server accounts. (See communications atiached hereto as Exhibit E,) Despite all of these examples (and there are others) the State demands that this Court should accept the verity of Agent Nesbitt’s affidavit without any opportunity for Mr, Swallow to investigate and question Agent Nesbitt at an evidentiary hearing. To the contrary, this Court should cither reject the affidavit out of hand, or allow Agent Nesbitt to be subject to examination on the subject Special Agent Jon Isakson Special Agent Jon Isakson is also a lead case agent in the present prosecution. He is, central to the issues presently before this Court, In fact, he bears central culpability to the attorney-client violation. For it is Istkson who admits that, after he acknowledges a taint team ‘was used to filter privileged content from communications sought from email servers, he purposefully sidestepped the process when it came to searching Mr. Swallow's computer, intentionally obtained the privileged communications, managed them, and caused them to be ‘memorialized for possession and use by investigators and prosecutors. It is viable that SA Isakson was specifically motivated to obtain the privileged material that might have been filtered from the search of the servers, since there is no explanation as to why he would purposefully circumvent the taint team when he knew he was reviewing material that would contain such communications, Certainly any bias and motive should be vetted before his self-serving claims are accepted or relied upon in any way. SA Isakson’s credibility issues are also outlined in Mr. Shurtleff's MOTION TO DISMISS FOR BRADY/GIGLIO AND SPEEDY TRIAL VIOLATIONS AND MEMORANDUM IN SUPPORT.Additionally, even the minimal documentation provided thus far from the State regarding SA Isakson’s activities in searching Mr. Swallow’s privileged communications is inconsistent with SA Isakson’s own affidavit, For instance, he maintains at §9 of his affidavit that he and at least one other agent searched for and managed privileged communications “beginning after June 23, 2014." However, a recently provided user log related to SA Isakson’s activity shows no activity hetween May 29 and September 9, 2014. (See report attached hereto as Exhibit F.) ‘The State has refused to provide other relevant report data that might produce additional discrepancies. The State has refused to provide any report data that might inform-or, more importantly, impeach-the claims made regarding use of search terms to segregate privileged communications. ‘Mr. Swallow does not believe that SA Isakson has not reviewed the contents of privileged communications, and disputes the claims in his affidavit. This Court should either refuse to give the affidavit weight, or must allow Mr. Swallow to further investigate the circumstances and confront the claims at an evidentiary hei The Taint Team Despite various references in various affidavits to utilization of a taint team, Mr. Swallow is not presently satisfied that any such team existed, or was utilized in segregating privileged communications in the course of the searches of his email servers. While Sim Gill claims he was under the impression that a taint team was utilized, and claims to have had numerous conversations with the FBI on the subject, evidence exists that calls the claims into question. For instance, while agents desired input from Mr, Gill regarding proposed taint team activity, emails ‘communications in the possession of the defense appear to demonstrate that Mr. Gill would notprovide any. Additionally, the State has recently claimed that there were 11 members of the taint team, yet the email communications indicate that the FBI was contemplating a team of only two ‘members. Additionally, the evidence shows quite clearly that the FBT and case agents intended to be directly involved in advising the taint team, which is inimical to the concept that members Of the team should be walled off from the prosecution agents, Further, in order to function properly, a taint team must communicate and cooperate with defense attorneys so that the team can know how to effectively search for and identify and protect potentially privileged material. A taint team presumably produces to a defense attorney for review a batch of filtered material and a batch of material that the team has determined is not privileged and is intended for production to the prosecution. The defense attorney then has the opportunity to object and/or further inform the team in the process. Neither Rodney Snow nor any other attorney was ever contacted by any purported taint team, In fact, it does not appear that any of the various attorneys for any of the many individuals who had their electronic ‘communications searched have ever been contacted by a purported taint team. The defense is not aware of any attorney related to this investigation that has ever been provided dises containing potentially privileged content purportedly filtered by a taint team. It remain a mystery as to if'an how the purported “taint team” referenced by the State operated, and whether it was recklessly ineffective and contributed to the attorney-client breach. In determining the extent of the attomey-client breach in this ease, and what remedy should apply in relation thereto, presumably this Court would desire to know whether the “taint team" referenced by the State in the present case actually existed, or was so ineffective as to be inconsequentialOther Considerations [Reasons to suspect the verity of the many other claims made in the many other affidavits in the State’s Response Memorandum are legion. It is simply inconceivable that all of these investigative agents, support staff, and attomeys, over a very long period of intense investigation, and during a long pendency of trial preparation in a highly complex case involving many counts and a massive amount of discovery, did not run key-word and other searches, and/or utilize other discovery management practices that made available to them examples of the privileged ‘communications. As the State acknowledges, the images were “scattered throughout without any special markings.” (Response Memorandum at 8, 427.) The defense team managed to encounter such material through very basic, unsophisticated means in the first month of beginning similar tasks. Mr, Swallow has right to confront the claims made by the State's witnesses. Further, a bevy of state and federal agents have been involved over a long period of time in the investigation and presentation of the present case. Presumably all of them have had access to the investigative results of search warrant activity, including the seizure of the privileged communications at issue here. There have been no attestations from such other agents as to whether they have viewed the communications, whether they may still have access to them, etc.. ‘The State recently provided a five terabyte hard drive purporting to contain “comprehensive up-to-date discovery” that has been purged of the privileged communications. ‘See SEVENTEENTI SUPPLEMENTAL RESPONSE TO REQUEST FOR DISCOVERY, filed June 10, 2016. ‘The State asserts that “the materials have been reviewed and deemed not to contain any potential attorney-client privileged material,” 7d. Concemed about this assertion, the defense has requested information as to who supposedly removed privileged communications, how they wereable to do so, when and where it was done, under what circumstances, etc... The State refuses to provide such information. Absent such information there is no way to know with any confidence whether the State and its agents continue to have access to privileged communications containing defense strategy. CONCLUSION ‘The State's position with regard to the present issue is alarming. Faced with # massive breach of privileged attorney-client communications containing defense strategy, the State has refused to welcome an independent investigation, Instead it has conducted its own secretive investigation into its own activities, and asks this Court to accept its promise that no harm has come from the intentional activity of its agents. The State refuses to provide information about the means and manor of its own investigation, or any access to supporting data and materials that might impeach its bald assertions. The State frantically insists that this Court must not allow any independent fact-finding in relation to its categorical and desperate assertions, While such an approach may be unsurprising in Russia or Iran, it defies basic notions of ftimess and fundamental due process that are the underpinnings of the criminal justice system in the United States of America, Based upon the State’s actions and posturing in relation to such actions, this Court cannot know with confidence the true and full nature and extent of the intentional intrusion into the attorney-client privilege, nor the extent that it may continue as the case proceeds to trial, Prejudice must be presumed. This Court should therefore summarily dismiss the case, In the alternative, this Court should undertake # course of investigation and taking of evidence that ‘comports with basic notions of fundamental due process, and ultimately rule with a full and fair 10understanding of the relevant circumstances. Respectfully submitted this 30th day of June, 2016. Js! Scott C, Williams Scott C. Williams Attomey for John E, Swallow CERTIFICATE OF SERVICE Thereby certify that on the 30th day of June, 2016, | filed, via GreenFiling, a true and correct copy of the foregoing, which sent electronic notification of such filing to the following: Chou Chow Collins Byron F. Burmester Office of the Salt Lake County District Attorney 111 Bast Broadway, Suite 400 ‘Salt Lake City, Utah 84111 {si Adrianna SandallEXHIBIT ASCOTT C. WILLIAMS (6687) 43 East 400 South Salt Lake City, Utah 84111 Telephone: (801) 220-0700 Fax: (801) 364-3232 wlegal@gmail.com CARA TANGARO (9197) Tangaro Law, P.C, 35 W. Broadway Suite 203 Salt Lake City, Utah 84101 Telephone: 801 673 9984 Fax: 801 606 7494 cara@tangarolaw.com Attorneys for Defendant IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT IN AND FOR THE COUNTY OF SALT LAKE, STATE OF UTAH. STATE OF UTAH, MOTION FOR ORDER REQUIRING PRODUCTION OF SUPPLEMENTAL Plaintiff, DISCOVERY RELATED TO STATES MEMORANDUM IN OPPOSITION TO. DEFENDANT'S MOTION TO DISMISS JOHN EDWARD SWALLOW, Defendant Case No. 141907718 Honorable Elizabeth Hruby-Mills Defendant John Edward Swallow, by and through his present counsel of record, hereby moves this Court to issue an order requiring the State to immediately provide the following, ‘materials~as well as any reasonably related materials—to the defendant. Such materials are implicated by the factual assertions made by the State in its Memorandum In Opposition To Defendant's Motion To Dismiss (“Response Memorandum”). Defendant continues to assert thatthe discovery requested is supported by Utah Rule of Criminal Procedure 16, the Due Process clause of the Utah and United States Constitutions, the principles iterated by the United States Supreme Court in Brady’ v. Maryland, 373 U.S, 83 (1963) and Giglio v. United States, 405 U.s. 150 (1972), and the principles iterated in State v. Hay, 879 P.2d 1 (Utah 1993) and State v Shabata, 678 P.24 785 (Utah 1984). Reference is made to both the fact section of the State’s Response Memorandum, as well as to affidavits attached thereto. Defendant requests that the State be ordered to provide the requested materials, or provide an explanation as to why it will not, Specific materials inelude, but are not limited to: 1. Any and all communications, reports, notes or other materials, whether electronic or physical, that have been created by any agent for the State or any witness for the State in relation to the subject of Defendant's Motion To Dismiss and any investigation as to how and why the State obtained attorney-client communications between the defendant and his attorney Rodney G. Snow. 2, All documents, reports, notes, and any other materials, whether electronic or physical, describing the FBI “taint team” referenced in paragraph 5 of the State's Response Memorandum, including, but not limited to a description of (a) the identity of the “taint team” participants, (b) a description of all actions taken by the “taint team,” ( ¢) all protocol related to the “taint team” activity, (d) identity of any supervisor of the “taint team,” (A) all emails between any prosecutor, investigative agent, related attorney, or any other person-relating to the existence, nature, oF activities of the “taint team) (¢) any and all other materials, communications, reports or other information related to the “taint team.”3. All emails, notes, reports or other materials in the possession of or available to any prosecutor or investigative agent or other person related to the investigation of Tim Lawson, Mark Shurtleff, John Swallow and/or any other person related in any way to the subject matter of the investigation, regarding the statement at paragraph 9 of the The Affidavit of Sim Gill that: ‘Iwas under the impression that the FBI had a taint team in place to filter the subject seized materials so that the prosecution team would not receive any potential attorney- client privileged materials. Thad had numerous conversations with the FBI about the potential attorney-client privileged materials and had asked the FBI to ensure that our office did not receive any potential attorney-client privileged materials. 4, All documents, reports or other materials related to the description in paragraph 3 of the Affidavit of Travis Johnson of interaction with an “FBI taint team.” specifically including all of the “remaining non-privileged emails that were deemed to be within the scope of the warrants by the taint team . 5, The full list of any and all words used in the “key word searches” that were engaged by any actor, as described in paragraph S of the Affidavit of Travis Johnson. 6. Ident tion of any person involved in forming any list of “key words” to be used in ‘key word searches,” identification of the supervisor of any such activity, and the actual lists of “key words” that were used. 7. The list of “names of all possible defense attomeys for John Swallow” as described in paragraph 6 of the Affidavit of Travis Johnson. 8, Inrelation to paragraph 6 of the Affidavit of Scott Nesbitt: All emails referenced as “non-privileged” that “were then made available to the FBI investigative team.” 9. The “BIDMAS” report described in paragraph 7 of the Affidavit of Scott Nesbitt,10. All reports, notes, memoranda or other materials related to the activity described in paragraph 4 of the Affidavit o! pecial Agent Jon Isakson, 11. The three dises described in paragraph 13 of the Affidavit of Special Agent Jon Isakson. 12, The “Lantern Forensic Report” referenced in paragraph 13 of the Affidavit of Agent Jon Isakson, 13, All documents whether electronic or physical associated with the creation of any BIDMAS account set up in relation to any investigation involving any material or analysis related to John Swallow. 14, All BIDMAS user reports related to any activity by any person or agent in connection with the any materials obtained by any search warrant resulis or any other source relating to John Swallow. 15, As referenced in paragraph 5 of the Affidavit of Agent Scott Nesbitt, the flash drive apparently created by Google, Inc. and provided by mail to Agent Nesbitt, All communications, reports, notes or other materials, whether electronic or physical, between Google, Inc. and any agent for the State related to the present case 16. As referenced in paragraph 5 of the Affidavit of Agent Scott Nesbitt, the “portal” apparently created by Apple and made accessible to the State, and all communications, reports, notes or other materials, whether electronic or physical, between Apple and any agent for the State related to the present case.17. A fall description of all Bates-stamped materials, or other materials, which comprise the “initial batch of discovery materials” referred to in paragraph 25 of the Response Memorandum. Mr. Swallow respectfully requests that this Court order production of the above-described ‘materials at the earliest possible time that the State can accommodate, Respectfully submitted this_3rd_day of June, 2016, Scott Williams C =, WILLIAMS Attomey for Defendant CERTIFICATE OF SERVICE, Thereby certify that on the 2nd day of June 2016, I filed, via GreenFiling, a true and correct copy of the foregoing, which sent electronic notification of such filing to the following: Chou Chou Collins Byron F. Burmester Office of the Salt Lake County District Attorney 111 East Broadway, Suite 400 Salt Lake City, Utah 84111 Js! Adrianna SandallEXHIBIT BSIM GILL, Bar No, 6389 District Attorney for Salt Lake County CHOU COLLINS, Bar No. 6081 BYRON F, BURMESTER. Bar No. 6844 Deputy District Attorneys 111 East Broadway, Suite 400 Salt Lake City, Utah 84111 ‘Telephone: (385) 468-7600 IN THE THIRD DISTRICT COURT, SALT LAKE DEPARTMENT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE STATE OF UTAH, STATE'S RESPONSE TO Plaintiff, DEFENDANT’S MOTION FOR ORDER REQUIRING PRODUCTION O} “vs SUPPLEMENTAL DISCOVERY JOHN EDWARD SWALLOW, Case No, 141907718, Defendant. Hon. BLIZABETH HRUBY-MILLS The State of Utah, by and through its counsel, submits this Response to Defendant's Motion for Order Requiting Production of Supplemental Discovery Related to State's Memorandum in Opposition to Defendant's Motion to Dismiss. INTRODUCTORY NOTE: Though Defendant has styled his submi ‘ion as a “Motion for Order,” the State will treat Defendant's submission as a discovery request, which is what it appears in essence to be. If it is really intended to be a Motion, the State resists that “Motion,” suggests that there is now no reason for the Court to enter any Order, and reserves it right to respond, if necessary, more fully, The State responds as follows to the sp lly numbered categories of requests, and objects, generally, on the basis of vagueness, ambiguity, unreasonable overbreadth, and undue burdensomeness (1) to Defendant's request for materials “reasonably related” to the categories specified, and (2) to Defendant's statement, appearing just above the beginning of the list of specific categories, that “Specific materials include, but are not limited to:* (Emphasis added.) IREQUEST NO. 1: Any and all communications, reports, notes or other materials, whether electronic or physical, that have been created by any agent for the State or any witness for the State in relation to the subject of Defendant's Motion To Dismiss and any investigation as to how and why the State obtained attorney-client communications between the defendant and his attomey Rodney G. Snow. OBJECTION TO REQUEST NO. 1: The State objects to this Request on the basis of the work-product doctrine, and on the basis of its vagueness and ambiguity. REQUEST NO. 2: All documents, reports, notes, and any other materials, whether electronic or physical, describing the FBI “taint team” referenced in paragraph 5 of the State's Response Memorandum, including but not limited to a description of (a) the identity of the “taint team” participants. (b) a description of all actions taken by the “taint team,” (¢) all protocol related to the “taint team” activity, (d) identity of any supervisor of the “taint team,” (4) all emails between any prosecutor, investigative agent, related attomey, or any other person-relating to the existence, nature, or activities of the “taint team) (e) any and all other materials, ‘communications, reports ot other information related to the “taint team.” OBJECTION AND RESPONSE TO R on the basis of the work-product doctrine, and on the basis of its vagueness and ambiguity, undue :QUEST NO, 2: ‘The State objects to this Request burdensomeness, and unreasonable overbreadth. Without waiving that Objection, the State responds as follows: (a) The “taint team” consisted of the following FBI Attorney Special Agents: William Long, Mark Seyler. Todd Argle, Greg Rogers, Derek Price, Trent Pedersen, Michael Melennen, Joseph Hess, Lance Edwards, Bruce Cartwright, Chris Assel.REQUEST NO. 3: All emails, notes, reports or other materials in the possession of or available to any prosecutor or investigative agent or other person related to the investigation of ‘Tim Lawson, Mark Shurtleff, John Swallow and/or any other person related in any way to the subject matter of the investigation, regarding the statement at paragraph 9 of the Affidavit of Sim Gill that: | was under the impression that the FBI had a taint team in place to filter the subject seized materials so that the prosecution team would not receive any potential attorney client privileged materials. 1 had had numerous conversations with the FBI about the potential attorney-client privileged materials and had asked the FBI to ensure that our office did not receive any potential attorney-client privileged materials, OBJECTION TO REQUEST NO. 3: The State objects to this Request on the basis of the work-product doctrine and on the basis of its vagueness, ambiguity, and unreasonable overbreadth. REQUEST NO. 4; All documents, reports or other materials related to the description in paragraph 3 of the Affidavit of Travis Johnson of interaction with an “FBI taint tean specifically including all of the “remaining non-privileged emails that were deemed to be within the scope of the warrants by the taint team OBJECTION AND RESPONSE TO REQUEST NO. 4; The State objects to this Request on the basis of the work-product doctrine. Without waiving that Objection. the State responds as follows: The FBI investigative agents, including Travis Johnson, did not create reports regarding their interaction, if any, with the “taint team.” REQUEST NO. 5; The full list of any and all words used in the “key word searches” that were engaged by any actor, as described in paragraph 5 of the Affidavit of Travis Johnson.The State objects to this Request on the basis of the work-produet doctrine. Without waiving that Objection, the State responds as follows: ‘Agent Travis Johnson and Special Agent Jon Isakson formulated their key word searches based on the key people and key locations listed in the affidavits in support of the search ‘warrants, There is no existing list of the key words used in the searches. REQUEST NO, 6; Ident tion of any person involved in forming any list of “key words” to be used in “key word searches,” identification of the supervisor of any such activity, and the actual lists of “key words” that were used. OBJECTION AND RESPONSE TO REQUEST NO. 6: ‘The State objects to this Request on the basis of the work-produet doctrine, Without waiving that Objection, the State responds as follows: Agent Travis Johnson and Special Agent Jon Isakson formulated their key word based on the key people and key locations listed in the alfidavits in support of the search warrants, There is no existing list of the key words used in the searches. REQUEST NO. 7: The list of “names of all possible defense attorneys for John Swallow” as described in paragraph 6 of the Aflidavit of Travis Johnson, TO REQUEST NO.7: The State objects to this Request con the basis of the work-produet doctrine, Without waiving that Objection, the State responds as follows:‘Agent Travis Johnson and Special Agent Jon Isakson used the following list of attorneys to filter for the privileged communications: Rod Snow, Jennifer James, Grant Sumsion, Randy L h, and Dana Facemyer. REQUEST NO, 8: In relation to paragraph 6 of the Affidavit of Scott Nesbitt: All emails referenced as “non-privileged” that “were then made available to the FBI investigative tea OBJECTION AND RESPONSE TO REQUEST NO. & The State objects to this Request on the basis of the work-produet doctrine. Without waiving that Objection, the State responds as follows The requested materials are BIDMAS materials. All discoverable information responsive to this request and currently within the custody of the Salt Lake County Distriet Attorney’s Office has been produced pursuant to Rule 16 of the Utah Rules of Criminal Procedure. REQUEST NO.S: The “BIDMAS” report described in paragraph 7 of the Affidavit of Scott Nes OBJECTION AND RESPONSE TO REQUEST NO. 9; The State objects to this Request ‘on the basis of the work-product doctrine, Without waiving that Objection, the State responds as follows: All discoverable information responsive to this request and currently within the custody of the Salt Lake County District Attorney’s Office has been produced pursuant to Rule 16 of the Utah Rules of Criminal Procedure.BIDMAS is the FBI Bureau Investigative Document Management & Analysis System. BIDMAS consists of a group of FBI IT analysts. They scan or process any electronic devices seized by the FBI and put the information on devices in a searchable format so that the taint team may review the materials. The State provided the BIDMAS materials to the defense in 2014, REQUEST NO. 10: All reports, notes, memoranda or other materials related to the activity deseribed in paragraph 4 of the Affidavit of Special Agent Jon Isakson. OBJECTION AND RESPONSE TO REQUEST NO. 10: The State objects to this Request on the basis of the work-product doctrine and on the basis of its vagueness, ambiguity and unreasonable overbreadth, Without waiving that Objection, the State responds as follows: All discoverable information responsive to this request and currently within the custody of the Salt Lake County District Attorney's Office (SLCDA) has been produced pursuant to Rule 16 of the Rules of Criminal Procedure. ‘The State has provided all the FEI 302 reports in this case. REQUEST NO. 11: The three dises described in paragraph 13 of the AMfidavit of Special Agent Jon Isakson, OBJECTION AND RESPONSE TO REQUEST NO. 11: The State objects to this Request because the State has already provided all responsive materials, including the contents of those three discs. to the defense. Without waiving that Objection, the State responds as follows: All discoverable inform: n responsive to this request and currently within the custody of the SLCDA has been produced pursuant to Rule 16 of the Rules of Criminal Procedure.Special Agent Isakson will nonetheless personally deliver those three discs to the defense attorney's office in the near future. REQUEST NO, 12: The “Lantern Forensic Report” referenced in paragraph 13 of the Affidavit of Agent Jon Isakson, OBJECTION AND RESPONSE TO REQUEST NO. 12: The State objects to this Request because the State has previously provided this item to the defense in its discovery packets. Without waiving that Objection, the State responds as follows: All discoverable information responsive to this request and currently withi the custody of the SLCDA has been produced pursuant to Rule 16 of the Rules of Criminal Procedure. ‘The “Lantern Forensic Report” is the data compiled by RCFL afier it images iPhones and converts it to a searchable data format so that the FBI agents can conduct key word searches of the data, REQUEST NO. 13: All documents whether electronic or physical associated with the creation of any BIDMAS account set up in relation to any investigation involving any material or analysis related to John Swallow. OBJECTION AND RESPONSE TO REQUEST NO. 13: The State objects to this Request om the basis of the work-product doctrine and on the basis of its vagueness, ambiguity. undue burdensomeness, and unreasonable overbreadth. REQUEST NO. 14: All BIDMAS user reports related to any activity by any person or agent in connection with the any materials obtained by any search warrant results of any other source relating to John Swatlow.OBJECTION AND RESPONSE TO REQUEST NO, 14: The State objects to this Request on the basis of its vagueness, ambiguity, undue burdensome, and unreasonable overbreadth and on the basis of the work-product doctrine. Without waiving that Objection, the State responds as Follows: The FBI Special Agent Jon Isakson’s BIDMAS logs are attached in Exhibit 1. REQUEST NO. 15: As referenced in paragraph 5 of the Affidavit of Agent Scott Nesbitt, the flash drive apparently created by Google, Inc. and provided by mail to Agent Nesbitt. All communications, reports, notes or other materials, whether electronic or physical, between Google, Ine. and any agent for the State related to the present case. OBJECTION AND RESPONSE TO REQUEST NO. 15: ‘The State objects to this, Request on the basis of the work-product doctrine and on the basis of its vagueness, ambiguity, and unreasonable overbreadth, Without waiving that Objection, the State responds as follows: ‘The communications between Google, Inc. and Agent Scott Nesbitt are attached in Exhibit 2. REQUEST NO. 16: As referenced in paragraph 5 of the Affidavit of Agent Scott Nesbitt, the “portal” apparently created by Apple and made accessible to the State, and all communications, reports, notes or other materials, whether electronic or physical, between Apple and any agent for the State related to the present case, OBJECTION AND RESPONSE TO REQUEST NO. 16: The State objects to this Request on the basis of the work-product doctrine and on the basis of its vagueness and ambiguity. Without waiving that Objection, the State responds as follows:The email communications between Apple and Agent Scott Nesbitt are attached in Exhibit 3 REQUEST NO. 17: A full deseri of all Bates-stamped materials, or other materials, which comprise the “initial batch of discovery materials” referred to in paragraph 25 of the Response Memorandum. OBJECTION AND RESPONSE OF REQUEST NO.17: The State objects to this Request on the basis of its vagueness, ambiguity, and undue burdensomeness. Without waiving that Objection, the State responds as follows: A list of the “initial batch of discovery materials” is attached in Exhibit 4 RESPECTFULLY SUBMITTED this 29" day of June, 2016. ‘SIM GILL. District Attorney for Salt Lake County /S/ Chou Collins CHOU COLLINS Deputy District Attorneyce F DELIVERY hereby certify that a truc and correct copy of the foregoing STATE’S RESPONSE TO DEFENDANT'S MOTION FOR ORDER REQUIRING PRODUCTION OF SUPPLEME! TAL, DISCOVERY was delivered to the following via the court's electronic filing system: SCOTT C, WILLIAMS 43 East 400 South Salt Lake City, Utah 84111 DATED this 29" day of June, 2016. 10EXHIBIT C— @ 2 —e And, you know, I should probably tell you guys this. “there’s a difference to me between Swallow and Shurtleff. A big one. MS. COLLINS: Uh-huh. MR. JOHNSON: Just in the two people that I know and that T dealt with. But, in my opinion, neither of them deserve what’s happening to them. And I don’t like what’s happening to them. And I don’t even like my role in it. But T’m--you know, T’m going to do the right thing. I'm going to be a witness and I’m going to tell the truth. But 1/11 be very, very sensitive to any kind of a manipulation of what, you know, my testimony is or everything else. 'So==1ike T/got/ upset’ when I'saw ‘Some of the search warrants/that. have been issued because I felt like he was taking things that I said and taking a piece here and a piece there. And he was drawing a picture that was different 26than what) Thad told him. But, you know-~ MS. COLLINS: MR. JOHNSON: when T read them-~ MS. COLLINS: MR. JOHNSON: that’s happening to m Which part was it exactly? I can’t even remember. I just remember Uh-huh. --I was like this is the kind of thing And it really bothers me. And I don’tEXHIBIT DSCOTT C, WILLIAMS (6687) Attomey for Defendant 43 Bast 400 South Salt Lake City, Utah 84111 ‘Telephone: (801) 220-0700 Facsimile: (801) 364-3232 sewlegal@gmail.com IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH STATE OF UTAH, : AFFIDAVIT OF JEREMY JOHNSON Plaintiff, vs JOHN E. SWALLOW, Case No. 14190718 Defendant, : Honorable Elizabeth Hruby Mills Jeremy Johnson, declare under oath and state as follows: 1, I participated in an interview on August 14, 2013 at the office of Davis County Attomey Troy Rawlings, and attended by Mr. Rawlings, Craig Webb, my attorney Ronald ‘Yengich, Jeff Wright, and Agent Scott Nesbitt 2, The meeting was recorded on devices in the possession of Mr. Yengich. However, subsequent to the interview, in October of 2013, agents for law enforcement went to Mr. ‘Yengich's office and took all of the materials relevant to the case, including the recordings of the August 14, 2013 interview. 3. Sometime in February agents returned the materials that they had taken from Mr.Yengich’s office. However, the recordings of the August 14, 2013 interview were not returned. To this date I do not have possession of any recording of the August 14, 2013 interview. 4, [have reviewed a report that Agent Scott Nesbitt wrote, apparently on September 16, 2013, regarding the August 14, 2013 interview. The report contains material misrepresentations 8s to statements allegedly made by me about John Swallow. The report is also misleading in its presentation of information regarding John Swallow, and it contains material omissions related to my statements made on August 14, 2013. ‘5, Further, with regard to the August 14, 2013 interview, and subsequent interviews that I participated in with Agent Nesbitt and other agents, I was encouraged to make my version of events comport and agree with the agent’s version of their case. I was given incentive to do so by promises of leniency in return for the statements, and the promise that my statements would remain confidential I HEREBY DECLARE THAT THE ABOVE STATEMENTS ARE TRUE TO THE BEST OF ‘MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND THEY ARE MADE FOR USE AS EVIDENCE AND ARE SUBJECT TO PENALTY FOR PERJURY. Q—O~ Jeremy Johnson DATED this_[{_ day of March, 2016EXHIBIT EBUGDEN & ISAACSON, tte 445 East 200 South TRIAL LAWYERS Suire 150, Saty Lake Ciry, UT 641 | PuoNe 801-467-1700 Fax 801-746-8600 WALLY@DILAW.NET Wavrer F. Buopen, Jr. January 7, 2014 VIA EMAIL & FIRST CLASS MAIL Sim Gill Jeff Hall | Salt Lake County Attorney's Office 111 East Broadway, #400 Salt Lake City, UT 84111 Troy Rawlings Davis County Attorney's Office | 800 West State Farmington, UT 84025 Re: Jason Powers / Search Warrants / Accuracy of Statements Contained in Affidavits Dear Gentlemen: Because | do not know exactly what you are investigating1, it requires a certain degree of conjecture to respond to the apparent investigation of my client, Mr. Powers. In the interest of full, fair, and candid discussion of what appear to be some relevant issues, | thought it would be beneficial to bring to your attention a misunderstanding that either your confidential source had, when communicating with Agent Scott Nesbitt, or Agent Nesbitt had the misunderstanding, or it could quite easily have been a combination of both. } In the affidavit in support of search warrant number 2162 - Google, Inc, and | Google Payments Corp,, it seems clear that the information conveyed to the judge contains a fundamental misunderstanding of the law that governs PACs or Cs. This 4 Evary search warrant, including those dealing for the most part with Tim Lawson or former Attorney General Mark Shurtleff, recite that the evidence sought is evidence of: Obstruction of Justice, Tampering wilh a Witness, Retaliation Against a Witness, Victim, or Informant; Bribery or Offering a Bribe, Receiving 6f Soliciting Bribe or Bribery of Public Official, Acceptance of Bribe or Bribery to Prevent Criminal Prosecution, Tampering with Evidence, Communications Fraud, Electronic Communications Harassment. 2. Search warrant 218 repeats the alegtions contained 246 | $S499311January 22, 2014 Page 2 falsity or reckless disregard for the truth is laid out in Paragraphs 89-and 93 in particular, | am going to discuss below, seriatim, the incorract information conveyed to the judge who authorized the search warrant Paragraph 85 ‘The factually false information: A confidential source (CS) who has provided his/her identity told your affiant that he/she worked for Jason Powers and Guidant Strategies on the John Swallow campaign and was originally hired by Jason Powers in 2008... The CS told your affiant that he/she was originally hired by Jason Powers to work for the Club for Growth PAC in Mark Shurtleff campaign for United States Senate against Senator Bob Bennett. To the best of our knowledge, the CS is Renae Cowley. Her hire date with Guidant Strategies was March 30, 2010. Ms. Cowley's first mileage reimbursement check was issued on April 8, 2010, Her first paycheck was dated May 7, 2010 (enclosed), The confidential source is not reliable. But worse, Agent Nesbitt did not confirm the reliability of her statements. For example, constructing a timeline to confirm some of her allegations would not have been difficult. Mr. Shurtleff withdrew from the campaign for the United States Senate seat on November 5, 2008s. Tobe clear, Ms. Cowley did not begin working for Guidant Strategies for almost 5 months after Mr. Shurtleff dropped out of the U.S. Senate race. Her statements about when she began working for Mr. Powers and on what campaign are demonstrably false. Paragraph 89 This paragraph states in pertinent part The CS told your affiant that he/she participated in conference calls in which Anthony Ferrate helped Jason Powers set up a 501(c) IRS tax ‘exempt entity) called Proper Role of Government Education Association 3 htto:swn, deseretnews, comfartcie/705342044/Shurlef-drops-out-of-US-Senate-race htm!7pq=all $$499312January 22, 2014 Page 3 (PRGEA), The CS told your affiant that Anthony Ferrate explained how to set up the PAC, so it would be tax exempt. The CS told your affiant that the PAC has to spend at least 51% of its funds on non-election activities Which can include consulting fees and attorney's fees. To be accurate, the paragraph needed to state the following The CS told your affiant that Anthony Ferrate explained how to set up the organization, so it would meet IRS standards to be tax exempt. Your CS told your affiant that the C4 had to spend at least 51% of its funds on its primary purposes which can include consulting fees and attorney's fees. Gentlemen, please note that “primary purpose" is very different from non-election activities, the term the affidavit used. If a C4’s primary purpose was to plant trees in Antarctica and a candidate for office sought to advance this position, it would be appropriate for the C4 to spend in favor of the candidate (or in opposition to the Candidate's opponent) if the C4 donated money to oppose abortion on demand; however, the "primary purpose ‘would not be met by this effort and it could not be counted toward the primary purpose”. Significantly, and critically important, there is, however, no specific standard 'ssued by the IRS on this point. Practitioners have used 51% as the basis for guiding clients, but there is nothing in federal law or regulation currently that provides this guidance or requirement. The CS andor the affiant have confused and mixed PACs with 501 Cas. A PAC can spend 100% of its money on political purposes, It is the 501 C4 that uses the 51% figure as guidance for IRS tax exempt purposes. Thus the entire thrust of this paragraph was false and misleading to the judge. Finally, if the Lieutenant Governor's office disagreed with the classification of an expenditure and deemed an expenditure to be made for a "political purpose”, the reporting entity is granted, pursuant to Utah Code Annotated section 20A-11-701, seven days after receiving notice from the Lieutenant Governor to file an amended return, Only if the reporting entity fails to file the amended retum within seven days of receiving notice could the violation constitute a class b misdemeanor. PRGEA (Proper Role of Government Education Association) never received any such notice from the Lieutenant Governor's office. So yet again, the law has been misstated in the affidavit, $S499313January 22, 2014 Page 4 Paragraph 93 As stated: ‘The CS told your affiant that he/she, Jason Powers, and Anthony Ferrate together participated in making false statements and agreeing to make false statements to the Internal Revenue Service including sending falsified documents because the actual expenditures of PRGEA did not meet the qualifications of the 501 (c) entity To be accurate, the paragraph needed to state the following: The CS told your affiant that he/ she, Jason Powers, and Anthony Ferrate together participated in crafted, but accurate statements using terms of art that the IRS commonly uses to assure that the IRS did not feel the need to ask further, unnecessary questions. Your CS was undoubtedly not a lawyer. You gentlemen as attomeys should certainly understand that terms of art are very important when satisfying IRS rules and regulations, The CS, without legal background or acumen, may have mistaken or misunderstood the importance of carefully and lawfully crafting a disclosure to the IRS. The fact that the unsophisticated interpretation by either the CS or the affiant was articulated as falsification to the judge is alarming, and certainly constitutes a reckless disregard for the accuracy and truth of the statements that were presented to the judge that authorized the warrant, ‘The CS and the affiant are basing their claim on false facts and a mistaken belief that a C4 cannot expend funds for political purposes. The C4 expenditure issue could have been and should have been resolved by the affiant examining the current IRS rule for Gas. Accurate understanding of the IRS regulation is this simple. There was no need for Mr. Powers, Mr. Ferrate, and the CS to falsify records because all political expenditures were legal under the federal tax law, independent of how they might have been reported to the IRS. To be completely clear on this topic, and to rebut the false statements contained in the affidavit, allow me to share the following with you, Mr. Powers provided a download of the transaction data to his employee. The employee made a first review and classified these expenditures, Then, Mr. Powers and the employee went over the transaction data together and made adjustments to the categories. Just because the CS, a non-lawyer, thinks an expenditure should have been classified as an $S499314January 22, 2014 Page 5 electioneering expenditure by the C4 does not mean it was properly classified as an electioneering expenditure by the C4. Nor does it mean that a donor should be revealed even if it was an electioneering communication. While there is not much State legal precedent on this subject, there are federal and United States Supreme Court decisions to support the legal conclusion by Mr. Ferrate, Mr. Powers relied upon the counsel of an election law expert Respectfully, the CS was incorrect on the facts and the law. His/her opinion and interpretation of the election law should not have been relied upon by your affiant. ‘There was a reckless disregard for the truth to have done so. « Any information obtained in Warrant 216 is going to be subject to a Franks suppression. | would be happy to discuss this with you further but | thought it best to bring these mistaken conclusions of law to your attention now, Yours truly, Wafer F. Bugden, Jr. WFB:sg:sw - Enclosure 4 "There must be allegations of deliberate falsehood or of reckless disregard forthe truth, and those allegations must be accompanied by an offer of proot’, Franks v, Delaware 438 U.S. 164, 171 (1978) $S499315Seeargy © __-uiehdooks nine | + $6 OM cede aa ee és 1 intuit: 227 215 oF et Payday obo “axes Forms Payceseup Renae Coviley's Overviews Basics tame tena Cowley Aderess 526 tort 4600 West Wost Point, UT s4015 ender f Bith Date snite't909 Emal Pay Regular Pay $16.67 per hour Advonal Pa; Overtime Pay Bonus Fundraising Wathod Check Schoduls Evory Month Deductions & Contributions {none) {none} {none} ontioutans Employee Site Access Faycheck Records No Access UseriD) Time Tracking Copy hours fom time Enabled — sheets Employee List Single Actiay Tme Sheet Employees eo Employment eae “Employes ID WorkLoration —-—RO, Box 843 away, UT 84048 Employment status Not On Payroll BES a 19 Form Fed NewHire Report filed ‘Yoorkers' Comp ola: Taxes & Exemptions cat Social Security? 6043 Federal Filing Status. Single Alowances 1 ‘davon $0.00 vuatnhoiaings UTFiing status single UTslowances 4 ‘Aaetional 30.00 ‘watolaings Tar Exemptions Currently no exemptions Advance Eamed — Ho Income Creat (E1c Vacation & Sick Pay i Taran Notes Add @ note $S499316$S499317$S499318EXHIBIT FUser Activity Report Case: 1948-SU-68452 User( jaisakson From date: Beginning To date: Present Generated by: superuser on 06/27/2016 12:55:48 EDT Event Description Folder Total Documents 1 04/28/2014 1 Login 2 04/28/2016 16:32:32 EDT Login 3 04/28/2014 1 EDT Logout 4 04/28/2014 16:34:10 EDT Search (Advanced): (Inves Investigati. 255 Search (Advanced): ({Inves Investigati_ 255 Search (Basic): Keyword: troutman 1“ Print (PDF, 1 document (selected by user) 1 Export (Mc2 document (selected by user) 1 Search (Basic): Entire Corpus 2163 Timeout Login Search (Advanced): (IInves Investigati 573 Timeout ~ 14 05/27/2014 12:43:40 EDT Login 35 05/27/2014 1: Login 16 05/27/2014 12:43:55 EDT Logout EDT Search (Basic): Entire Corpus 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Timeout Login Search Tagging Tagging ‘Tagging Tagging Tagging Tagging Tagging Tagging Tagging ‘Tagging Tagging Timeout Login Search Tagging Tagging Tagging Tagging Tagging Tagging Tagging ing Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Tagging Timeout Login (Basic): Entire Corpus (Basic): Entire Corpus 7850 785086 05/28/2014 16:04:50 EDT £87 05/28/2014 16:06:25 EDT 88 05/28/2014 16:06:36 EDT 89 05/28/2014 16:06:44 EDT 90 05/28/2014 16:06:58 EDT 91 05/28/2014 16:07:08 EDT 92 05/28/2014 16:07:28 EDT 93 05/28/2014 16:07:55 EDT 94 05/28/2024 16:08:11 EDT 95 05/28/2014 16:08:23 EDT 96 05/28/2014 16:09:58 EDT 97 05/28/2014 16:11:00 EDT 98 05/28/2014 16:11:09 EDT 99 05/28/2014 16:11:20 EDT 100 05/28/2014 16:20:13 EDT 101 05/28/2014 16:21:15 EDT 102 05/28/2014 16:53:54 EDT 103 05/28/2014 16:55:24 EDT 104 05/28/2014 16:57:20 EDT 105 05/28/2014 16:59:21 EDT 106 05/28/2014 17:03:33 EDT 107 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