SALT LAKE CITY — Imprisoned businessman Jeremy Johnson refused to testify Thursday for the second straight day in the trial of former Utah Attorney General John Swallow.
Third District Judge Elizabeth Hruby-Mills ruled that Johnson has state and federal immunity and compelled him to take the witness stand again. But the result was the same as the day before.
Johnson — handcuffed, shackled and wearing red jail scrubs — did answer a few questions about where he lives. But when deputy Salt Lake County district attorney Chou Chou Collins asked him if he could answer questions about Swallow, he replied: "No ma'am."
After Collins tried again, Johnson said, "I believe that I’m doing the right thing by exercising my right, my Fifth Amendment right not to answer."
The judge asked Johnson if he was going to continue to refuse despite being ordered to answer.
"Respectfully so, yes, ma’am," he said.
Hruby-Mills, who found Johnson in contempt Wednesday and sentenced him to 30 days in jail, sent him back to jail and ordered him to return to court Friday morning. The judge said she intends to bring Johnson back every morning.
"I think the court by bringing him back day after day is giving him an opportunity if he wants to change his mind," Karra Porter, one of Johnson attorneys, said afterward. "I don't know whether at this point it's going to make any difference because our concerns have not yet been addressed."
Johnson was convicted of making false statements to a bank last year in connection with his internet marketing company and is serving an 11-year sentence in a federal prison in Taft, California.
Porter told the judge that Johnson still doesn't have immunity that would protect him from other jurisdictions — particularly the federal government — using his words against him in other prosecutions.
The federal government is "hot" to prosecute Johnson on everything it can, Mary Corporon, another Johnson attorney, told the judge.
Prosecutors and Johnson's attorneys Thursday worked out a grant of immunity and sent it to the Department of Justice to sign off on. But it is unknown whether the department would accept it.
Corporon said earlier in court that the immunity extended by the state "lays a trap" that would not bind other states or federal agencies.
"I am completely flummoxed by this situation, your honor," Corporon said.
Johnson, she said, is also in the crosshairs of a jurisdictional dispute among Salt Lake and Davis counties, federal agencies, as well as authorities in Nevada and California.
"If there were pink dinosaurs downstairs and all of these dominos were resolved and we felt 100 percent certain that he was fully protected, he's willing to do his duty as a citizen," Porter said outside the fourth-floor courtroom.
Deputy Salt Lake County district attorney Fred Burmester asked the judge to force Johnson to testify and earlier Thursday offered to work with the Department of Justice and Johnson's lawyers to come up with a more satisfactory immunity agreement. The department submitted a letter Wednesday saying it would abide by the state's grant of immunity, but Corporon argued it wasn't sufficient.
Davis County Attorney Troy Rawlings once granted Johnson immunity in his investigation of former Utah Attorney General Mark Shurtleff and others. Corporon said Rawlings called her Wednesday night and warned her that the immunity he had given Johnson wasn't honored by the feds and hers might not be either.
Burmester said he's frustrated with Rawlings trying to "undermine" the case against Swallow, and said he is swirling around like a "Tasmanian devil."
Burmester noted that the defense has listed Rawlings as a potential witness in the case and that he shouldn't be following news reports or social media on the Swallow trial. He said Rawlings shouldn't be aware of the Johnson situation.
Scott Williams, Swallow's attorney, clarified that Rawlings would be called as an "expert" witness and that the defense has talked to him regularly about the case. He noted that Marc Sessions Jenson testified that there are overlapping investigations going on.
Swallow and Shurtleff were originally charged as co-defendants. Rawlings took the Shurtleff case after they were separated. He dropped charges against Shurtleff last year, frustrated that federal agencies wouldn't turn over what he believed was key evidence from their own investigations. The Department of Justice Public Integrity section opted not to file criminal charges against either of the two former attorneys general.
Rawlings issued a one-page response Thursday describing his investigative efforts, including the granting of immunity through a special appointment from the Utah Attorney General's Office. He said the Salt Lake County District Attorney's Office and the federal government "for some time now" have wanted him to ignore that duty, including a mandate to make determinations on immunity.
Rawlings wrote that prosecutors wanted him to conceal from Johnson's lawyers, and thereby the court, that they need to consider the ramifications of the authority he was granted regarding Johnson, whom he called a "key figure and witness in the larger scope of potential criminality."
"If not hiding things from defendants and witnesses, caring about fulfilling my duties as a special assistant attorney general (including with respect to immunity determinations with key figures) and most importantly my oath to the constitutions of Utah and the United States makes me a Tasmanian devil to their agenda, so be it," Rawlings wrote.
Losing Johnson's testimony would be a severe blow to the prosecution. Much of the state's case against Swallow hinges on his claims.
Swallow is charged with 12 felonies and one misdemeanor, including racketeering, bribery, accepting gifts, money laundering and evidence tampering.
Alone and sometimes with others, Swallow solicited campaign contributions from the telemarketing, negative option marketing and payday loan industries in exchange for help on specific issues and favorable treatment by the attorney general's office, according to charging documents.
Johnson accused Swallow — in his first week as attorney general in 2013 — of helping to set up a $250,000 payment to enlist former U.S. Senate Majority Leader Harry Reid, D-Nev., in an effort to get the Federal Trade Commission off his back. Swallow maintains he only introduced Johnson to a friend who could lobby the senator.
Johnson, who prosecutors say invested millions in troubled SunFirst Bank in St. George and started illegally processing online poker transactions, sought the attorney general's legal opinion on the practice. Swallow, who was chief deputy attorney general at the time, responded in a July 2010 email: "Jeremy, I am not aware of any such law in Utah that would prohibit what you are doing."
In 2011, Johnson approached Travis Marker, an attorney who specializes in mediation and dispute resolution, looking to help him resolve his case with the FTC. That summer, Marker met with Swallow about the parallel federal criminal case against Johnson on several occasions.
In a meeting at the state Capitol, Swallow told Marker that if Johnson gave him $120,000, there might be more options available to Johnson for resolving the criminal case, court documents allege.13 comments on this story
Johnson ultimately went to trial last year on an 86-count fraud indictment. A federal jury acquitted him of all but eight counts of making false statements to a bank. He is currently serving his sentence for those convictions in California.
Johnson is appealing the convictions, and Corporon said he doesn't want anything he says in the Swallow trial to be turned against him.
Johnson is also the subject of Federal Election Commission lawsuit alleging he made illegal campaign contributions to Reid, Sen. Mike Lee, R-Utah, and Shurtleff.
The FTC shut down Johnson's internet marketing enterprise and seized all his assets in 2011.