While (Johnson) has the right to his day in court, he is not entitled to litigate his case in the media (print, broadcast or social) by means of false accusation and innuendo. —Prosecutors
SALT LAKE CITY — A defense attorney group is challenging federal prosecutors' attempts to silence indicted businessman Jeremy Johnson.
The Utah Association of Criminal Defense Lawyers filed a court brief this past week arguing that the U.S. Attorney's Office hasn't provided evidence for an order to keep Johnson quiet.
"Instead, it appears the government is asking the court to presume the mere specter of media attention is sufficient to justify the entry of a very broad gag order, not only on Mr. Johnson and his counsel, but also on any or all possible witnesses," according to the 26-page document.
The association says it doesn't want to be involved in the case other than to argue against the gag order.
Alleging that Johnson has used the media to “publicly besmirch the integrity" of the U.S Attorney's Office, prosecutors want to prevent him, his attorney, his associates and all potential witnesses from making statements outside court.
A decision on the proposed gag order is expected later this month. A federal magistrate judge sternly warned Johnson to not talk to the media or potential witnesses in the meantime.
Johnson ignited a political firestorm in January when he accused Utah Attorney General John Swallow of helping arrange a $600,000 payment to enlist Senate Majority Leader Harry Reid in an effort to derail a Federal Trade Commission investigation into Johnson's company, iWorks. Swallow adamantly denies the allegation. Reid has disavowed any knowledge of Johnson's case.
Johnson is charged with one count of mail fraud in connection with his once lucrative Internet marketing enterprise. He spent three months in jail after his arrest in June 2011. His family and friends put a $2.8 million property bond to free him pending trial.
But the criminal case against Johnson could change drastically on Wednesday, barring another time extension.
U.S. District Judge David Nuffer set a March 6 deadline for federal prosecutors to file additional charges in the case. After a proposed plea bargain fell apart in January, prosecutors said they intended seek a superseding indictment. Nuffer extended the deadline from the original Feb. 20 date.
Also, an associate of Johnson's — a St. George man he sought to protect from prosecution as part of the failed plea deal — and another man have been named in federal warrants out of Tampa, Fla.
Jason Thomas Vowell, 37, was booked into the Washington County Jail in St. George on Thursday. The warrant states the charges as "conspiracy to distribute 100 kilos or more of marijuana; aiding and abetting in the possession of a quantity of marijuana." Also arrested on the same charges was Chad Christopher Sunyich, of St. George, 37.
Vowell was among people whom Johnson claims federal prosecutors threatened to go after if Johnson didn't plead guilty in his criminal case.
The plea deal collapsed when prosecutors balked at a list of people — including Swallow — whom Johnson wanted protected from prosecution if he pleaded guilty.
Vowell's name also appears in court documents in the FTC's civil case against Johnson. The FTC alleges Johnson bilked online consumers out of nearly $300 million with deceptive "trial" memberships to bogus government grants and moneymaking schemes. It shut down iWorks and seized all of Johnson's assets, including helicopters, luxury cars and gold, in 2011.
Vowell and his brother Todd Vowell, an accountant, were named as being primarily responsible for helping Johnson move assets around after the FTC sued other companies like his and then sent him a letter telling him to preserve all his assets as part of its investigation into iWorks.
In the criminal case, prosecutors asked the court to muzzle Johnson last month. They say has used various media outlets to accuse the government of misdeeds, including his evilFTC.com website, a Facebook page titled "Unofficial Fan Page United States Attorney for the District of Utah," two YouTube videos and statements to the media.
"While (Johnson) has the right to his day in court, he is not entitled to litigate his case in the media (print, broadcast or social) by means of false accusation and innuendo," prosecutors argue.
In its memorandum, the defense lawyers association contends the government failed to demonstrate how Johnson's statements or websites has prejudiced the case.
"To insist on one’s innocence, and to complain when one feels indictment is improper 'may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,' and the occasionally 'erroneous statement is inevitable,' the memo says citing a U.S. Supreme Court case.
In his own brief, Johnson's court-appointed attorney Ron Yengich contends the government's gag order request is too broad. Any order, he wrote, should be narrowly tailored and only preclude Johnson from making statements that materially influence the proceedings, prevent a fair trial or impede justice.
Johnson also should not be held responsible for what others might post on websites, he said
"It is impossible to control posting on social media, even with a court order," Yengich wrote.