RONALD J.

YENGICH, #3580
EARL G. XAIZ, #3572
A. CHELSEA KOCH, #8789
YENGICH, RICH & XAIZ
Attorneys for Defendant
175 East 400 South, Suite 400
Salt Lake City, Utah 84111
Telephone: (801) 355-0320
Fax: (801) 364-6026




IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION


UNITED STATES OF AMERICA,

Plaintiff,

vs.


JEREMY JOHNSON and
IWORKS, INC.,

Defendants.


DEFENDANT’S RESPONSE TO
GOVERNMENT’S MOTION FOR AN
ORDER PURSUANT TO DUCrimR 57-6



Case No. 2: 11-CR-501-DN-PMW


Judge David O. Nuffer
Magistrate Judge Paul M. Warner



The defendant, Jeremy Johnson (“Johnson”), by and through his attorneys of record,
hereby submits the following response to the government’s motion for an order pursuant to
DUCrimR 57-6 (Document 188).
ARGUMENT
The government seeks an order from this Court, pursuant to DUCrimR 57-6, precluding
extrajudicial statements of Johnson, his counsel, his affiliates, and all potential witnesses,
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alleging that Johnson has used the media to “publicly besmirch the integrity of the United States
Attorney’s Office for the District of Utah and, in particular to publicly accuse Mr. Ward of
prosecutorial misconduct.” See Government’s Motion, p. 10. Specifically, the government
references information placed on EvilFTC.com Website, Johnson’s statements to the media, a
blog titled, “The Life of Jeremy Johnson,” a Facebook page titled, “Unofficial Fan Page United
States Attorney for the District of Utah,” a YouTube video of prior defense counsel, Nathan
Crane, and an e-mail from Johnson to Mr. Crane and Mr. Ward.
Rule 57-6 states, in relevant part:
In a criminal matter that is likely to be widely publicized, the court,
during the investigation, or at any other time, may issue an order
governing extrajudicial statements by parties or witnesses which
have a substantial likelihood of materially influencing a criminal
proceeding or of preventing a fair trial or impeding the
administration of justice.

DUCrimR 57-6. The Supreme Court of the United States has held that the “substantial
likelihood of material prejudice” standard is constitutionally permissible in order to balance the
competing rights of free speech interests against interests in fair judicial proceedings. Gentile v.
State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). However, any
restraint on an attorney’s speech must be narrowly tailored and apply only to speech that is
substantially likely to have a materially prejudicial effect on the judicial proceedings. Gentile,
501 U.S. at 1075, 111 S.Ct. 2720.
Counsel for Johnson concede that this matter is a widely publicized matter, and that,
pursuant to the rule, this Court has the ability to govern those statements that have a “substantial
likelihood” of materially influencing the proceeding, preventing a fair trial, or impeding justice.
Moreover, it is agreed that Johnson’s Sixth Amendment right to a fair trial is of utmost
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importance. As such, counsel for Johnson agree that an order governing those extrajudicial
statements that fall within the guidelines of DUCrimR 57-6 is appropriate. However, it is the
scope of the order sought by the government to which Johnson objects.

A. The Requested Order is Overbroad.
The government seeks to prevent all public statements made by Johnson, his counsel, his
affiliates, and potential witnesses. It is agreed that such extrajudicial statements that have a
substantial likelihood of materially influencing the proceeding, of preventing a fair trial, or of
impeding justice, will not be made by Johnson, or present counsel for Johnson. However,
including in such an order all of Johnson’s affiliates and potential witnesses serves to invalidate
the order as unconstitutionally broad. Not only does the government fail to identify the
particular individuals it alleges are Johnson’s affiliates or potential witnesses, even if they were
to be specifically listed, any statements made by this group of people could not be imputed to
Johnson. Johnson cannot be punished for, or held accountable for, statements made by a
relatively large group of individuals, unidentified or identified.
Of additional concern is the government’s desire to extend the order to social media such
as websites, Facebook pages, and blogs. While this Court has the jurisdiction to order Johnson
not to post certain types of statements on social media such as his personal blog, numerous, and
often unidentified, individuals have access to these forms of electronic media in order to post
statements or information. Such individuals have a First Amendment right to free speech, as
well as the extensive rights to free speech and assembly granted by Article I, § I of the
Constitution of Utah, and likely do not fall within the jurisdiction of this Court.
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Further, counsel’s concern is that any individual who posts on a social media site, will be
alleged by the government to be an “affiliate” of Johnson, and such post will be attributed to
him.
1
It is impossible to control posting on social media, even with a court order. As such,
Johnson objects to an overbroad order from this Court that would result in his being responsible
for potential posts of others not under his control.

B. The Order Should Also Apply to the United State’s Attorney’s Office.
The government’s motion requests that this Court enter an order restricting the speech of
only those people associated with the defense and potential witnesses, but makes no reference to
governing extrajudicial statements made by the United State’s Attorney’s Office, agents, or other
“affiliates” of that office. Rule 57-6 applies to all parties, and the government and its agents are
not exempt from court orders of this nature. The Supreme Court in Gentile recognized that,
“[t]he police, the prosecution, other government officials, and the community at large hold
innumerable avenues for the dissemination of information adverse to a criminal defendant. . . .”
Id. at 1056. Johnson submits that any order from this Court controlling the speech of the parties
should include, not only the defense, but also the government. Therefore, Johnson objects to any
order that does not apply to all parties, particularly given the statements made in the public
forum by Mr. Tolman and former Judge Cassell.



1
An example of such are the repeated comments in the media by individuals who have a
relationship to the United State’s Attorney’s Office, including former U.S. Attorney, Brett
Tolman and retired Federal Judge Paul Cassell. Both individuals have extensive contacts within
the United State’s Attorney’s Office.
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C. Johnson’s First Amendment Rights Should Remain in Relation to His Civil
Matter.

While Rule 57-6 allows this Court to restrict the speech of the parties and witnesses, it
does not apply to all extrajudicial statements made. Rule 57-6 is specifically applicable only to
those extrajudicial statements that have a substantial likelihood of materially influencing the
proceeding, preventing a fair trial, or impeding justice. In addition to the instant criminal case,
Johnson is currently involved in civil litigation related to the criminal charges where he is
unrepresented. This civil litigation has not been stayed pending the outcome of the criminal
case, but is moving forward quickly. Given that Johnson is representing himself in the civil
matter, it is necessary for him to prepare pleadings, respond to questions, and make statements in
connection with the civil case. In order to properly defend himself in the civil case, Johnson
must be able to make extrajudicial statements relating to the instant case.
Consequently, any order entered by this Court should be narrowly tailored and only
preclude Johnson from making statements that materially influence the proceeding, prevent a fair
trial, or impede justice. Entering an overbroad order preventing all extrajudicial statements by
Johnson would not only violate his First Amendment right to free speech, but would also
significantly impair his ability to defend against any pending civil case.
RESPECTFULLY SUBMITTED this 26
th
day of February, 2013.

YENGICH, RICH & XAIZ
Attorneys for Defendant


By Ronald J. Yengich /s/
RONALD J. YENGICH

Case 2:ll-cr-0050l-DN-PMW Document 209 Filed 02/26/l3 Page 5 of 6
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CERTIFICATE OF SERVICE

I hereby certify that I caused to be delivered electronically a true and correct copy of the
foregoing Defendant’s Response to Government’s Motion for an Order Pursuant to DUCrimR
57-6, on the case styled United States of America v. Jeremy Johnson and IWORKS, INC., this
26
th
day of February, 2013, to:

Carlie Christensen
Felice Viti
Office of the United States Attorney
185 South State Street, Suite 300
Salt Lake City, Utah 84111


A. Chelsea Koch /s/


Case 2:ll-cr-0050l-DN-PMW Document 209 Filed 02/26/l3 Page 6 of 6

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