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Case 2:16-cr-00082-TS-RTB Document 730 Filed 12/15/16 Page 1 of 9

JOHN W. HUBER, United States Attorney (#7226)

ROBERT A. LUND, Assistant United States Attorney (#9579)
TYLER L. MURRAY, Assistant United States Attorney (#10308)
AMANDA A. BERNDT, Assistant United States Attorney (#15370)
BROCK R. BELNAP, Special Assistant United States Attorney (#6179)
Attorneys for the United States of America
111 South Main Street, Suite 1800
Salt Lake City, Utah 84111
Telephone: (801) 524-5682





Case No. 2:16-CR-82-TS




District Court Judge Ted Stewart

COMES NOW, the United States of America, by and through the undersigned
Assistant United States Attorney, and hereby responds to the motions to reconsider the detention
of defendants John Wayman and Seth Jeffs (Doc. 720 & 722).
Now only six weeks from trial, defendants John Wayman and Seth Jeffs ask the court to
yet again take up the issue of their detention. The current settings constitute Waymans fourth
detention hearing and Jeffss third hearing. In response to these new motions, the United States

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reasserts all of its previous arguments and reoffers all of the previously received evidence in
support of its contention that no set of conditions can satisfy the concerns of 18 U.S.C. 3142.
Confirming the merit of the arguments previously advanced by the United States, defendant Lyle
Jeffs fled when released by the court and defendants John Wayman and Seth Jeffs violated the
express conditions of release ordered by the court.
Because no new circumstances merit reconsideration of the courts previous orders, the
defendants motions are properly denied. The allegations remain the same, the evidence in
support of the allegations remains the same, and the defendants propensity to disregard the
courts orders remains the same. In support of their motions, the defendants rehash some of the
same arguments previously rejected by the court. The United States finds no reason to address
those arguments again. Additionally, the defendants now raise other issues related to discovery
production, plea offers to other defendants, and the substantive law governing the charged
conduct. However, none of the new issues raised by the defendants relate to the matter of
detention. Nevertheless, the United States will briefly address the new issues raised by the
1. Discovery
At both pre-trial conferences held in the instant case, the United States specifically
announced its intention to continue its investigation of the case and to continue to provide any
discoverable materials that it obtained. No provision of law precludes continuing an
investigation post-indictment. In fact, the United States does so in nearly every case it brings.

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In response to the governments announcement of its investigative intentions, no defendant

raised any objection, nor did the court preclude the government from doing so.
Significantly, the amount of discovery that has been produced since that time constitutes only
a small percentage of the total discovery produced in the case. By Notice of Compliance 5
(NOC-05), the United States had produced 76,965 pages of discovery. Since then, the United
States has produced an additional 16,165 pages. A significant amount of the new discovery
relates to a reproduction of previous provided materials. 1 Moreover, as set forth the in NOC-11,
nearly half of the new discovery (7,845 pages) relates to vendor records from FLDS-owned
businesses that had been subpoenaed by the Grand Jury. These FLDS-owned businesses initially
resisted the production of documents. After the court overruled their objections, the businesses
finally produced the documents, after which the United States immediately produced them to the
defendants. That litigation took months to resolve, at no fault of the United States. 2
The remainder of new documents relate mostly to supplementing bank records that
correspond to accounts previously identified to the defendants and for which other bank records
were previously produced (NOC-13, 16, and 17). Of the new material, only 549 pages relate to
new investigative reports (NOC-15).

NOC-7 corresponds to reproduction of the Title III video evidence in a more easily viewable format.
The audio recordings produced with NOC-8 correspond to written reports that the government provided
initially. NOC-9 relates to the production of the seizure warrants corresponding the civil forfeiture
proceeding. The underlying facts in the affidavits corresponding to the seizure warrants are nearly
identical the search warrant affidavits provided in NOC-5. NOC-10 relates to certificates of authenticity
corresponding to business records previously provided by the government. NOC-12 relates primarily to a
reproduction in a comprehensive database (IPRO) of all the documents provided in NOC-2 through 12.
Mr. Waymans reference to 43.10 GB of data in that production is misleading in that all but 2,000 pages
of that material were provided to the defendants in previous productions.

Similarly, other documents required a time consuming taint review before production and that delay
cannot not be attributed to any dilatory performance by the United States either.

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Moreover, the discovery has been produced over a ten-month period, providing the
defendants ample time to review it. However, most importantly the defendants have not alleged
any prejudice from the production of additional discovery. The fact that neither Wayman nor
Jeffs have moved the court to continue the instant trial setting underscores the lack of prejudice.
Given the lack of prejudice, the additional production of discovery is irrelevant to the
defendants detention.
2. Plea Offers
In support of their motions, the defendants also cite to plea negotiations between the
government and other the parties in the case. As a preliminary matter, the public policies which
underlie Federal Rules of Evidence 408 and 410 suggest that the court should not consider any
such negotiations for the purpose advanced by the defendants. Those rules intend to limit the
admissibility of plea negotiations in order to avoid the undesired effect of chilling settlement
discussions in criminal and civil matters. 3 Moreover, the fact of plea negotiations does not relate
in any way to whether Wayman and Jeffs will again violate the conditions of their release.
3. SNAP Regulations
The defendants incorrectly argue that no regulation applies to the conduct alleged in the
indictment. In support of that contention, the defendants renew the same arguments they made
in relation to the motion to dismiss the indictment. However, in denying the motion, the court
specifically rejected that argument.

Cf. Wright v. Bell, 619 F.3d 586, 600 (6th Cir. 2010) (Allowing a defendant to use plea negotiations in
mitigation [in a capital case] would clearly discourage plea negotiations . . . Plea bargaining is to be
encouraged, not discouraged, and therefore is improper evidence to present in mitigation.)

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As the court properly noted in its order denying the defendants motion to dismiss, the
regulations require SNAP benefits to be used by the household and the statute and regulations set
out approved conduct and prohibit contrary conduct. (ECF No. 695, 27-28). 4
The defendants further argue that the court will now impose a scienter requirement and
somehow that circumstance supports the defendants release. However, the crimes charged in
the indictment are not per se offenses. As properly alleged in the indictment, both offenses carry
an element of knowledge. Therefore, scienter has always been at issue in the case. Therefore,
the state of the law is the same as it ever has been, and the state of the law does not in any way
relate to whether the defendants will again violate the courts order.

United States v. Salazar, 720 F.2d 1482, 1484-1486 (10th Cir. 1983) (The regulations provide a detailed
description of the authorized means of acquiring food stamps . . . The statute and regulations together give
sufficient notice of the proscribed conduct and provide adequate standards for enforcement. Defendant
argues that the statute is vague because it prohibits all means of acquiring food stamps if they are not
authorized by the statute or regulations. Defendant contends that to avoid this vagueness infirmity,
the statute must specifically delineate what is prohibited . . . We know of no constitutional mandate
for such a legislative drafting decision.) (emphasis added); Cf. United States v. Franklin-El, 554 F.3d
903, 910-11 (10th Cir. 2009) (Although the health care fraud statute does not (and could not) specify the
innumerable fraud schemes one may devise, a person of ordinary intelligence would understand
Defendants conduct to be the very conduct contemplated by 18 U.S.C. 1347.); United States v.
Agnew, 931 F.2d 1397, 1404 (10th Cir. 1991) (most statutes must deal with the untold and unforeseen
variations on factual situations and the practical necessities of discharging the business of government
inevitably limit the specificity with which legislatures can spell out prohibitions.) (citation omitted);
United States v. Gaurdreau, 860 F.2d 357, 363 n.17, (Laws cannot define the boundaries of
impermissible conduct with mathematical certainty. Whenever the law draws a line there will be cases
very near each other on opposite sides. The precise course of the line may be uncertain, but no one can
come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal
law to make him take the risk. quoting Nash v. United States, 229 U.S. 373 (1913)).

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4. The Weight of the Evidence

Although the United States cannot try the merits of the indictment in the coming detention
hearings, the United States will briefly respond to what it can only characterize as a very
selective reading by the defendants of the investigative materials.
As detailed in the investigative reports, the United States will call witnesses at trial who will
describe the defendants personal participation in the fraudulent SNAP scheme. At various
times, Mr. Jeffs and Mr. Wayman (during the time he was the Short Creek FLDS Bishop) were
in charge of the FLDS Storehouse to which the SNAP funds were diverted. Additionally,
witnesses will also detail the instructions they were given by church leaders to divert their SNAP
benefits to the church Storehouse. Witnesses will testify that John Wayman and Seth Jeffs
attended, presided over, and provided instruction at such meetings. These witnesses will testify
that they knew the SNAP regulations precluded the use of the funds in that way. Witnesses will
describe warnings provided by Robert Knudson regarding the illicit nature of the conduct and the
need to take steps to prevent government detection. Other witnesses will testify about the
delivery of SNAP cards directly to John Wayman and his direction to use SNAP funds for the
benefit of persons other than the authorized beneficiaries.
Besides the direct evidence linking the defendants to fraudulent conduct, the circumstantial
evidence implicating the defendants is overwhelming. For instance, financial records and
forensic accounting analysis clearly establish the diversion of millions of dollars in SNAP funds
and elaborate efforts to conceal that conduct through front companies and fictitious business
transactions. These elaborate attempts to launder the money underscore that FLDS members
involved in the scheme well knew of the criminal nature of diverting SNAP funds.

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To understand the FLDS community, as expert and lay testimony will help to do, is to
understand that this elaborate criminal activity could not have taken place without the express
authorization and direction of Warren Jeffs and his surrogates, like his brothers Lyle and Seth
Jeffs and his very close friend, John Wayman, whom Warren Jeffs hand-selected to run the
FLDS church during his period of incarceration. Regardless of their title as bishop or presiding
elder, as long-time disciples of Warren Jeffs, John Wayman and Seth Jeffs occupied significant
leadership positions during the fraud period.
The very poor and insular FLDS community could not support itself without receiving very
significant federal welfare benefits. Given the large amount of money involved and the length of
time that individuals in that community received those welfare benefits, witnesses will testify,
and the circumstantial evidence will corroborate, that the regulatory restrictions imposed on the
use of SNAP funds were common knowledge in the FLDS community. The extensive video
surveillance evidence tends to confirm that participants in the scheme knew of its unlawful
nature. Video clips that the United States will offer at trial depict several instances in which
FLDS members surreptitiously surveyed the Meadowayne store before diverting their SNAP
benefits to the church. Based on all of that evidence, the United States will undoubtedly
establish a prima facie case against the defendants at trial.
5. New recording from Warren Jeffs
The United States contends, as it always has, and as the previously admitted evidence clearly
confirms, that the defendants will follow their religious leader, Warren Jeffs, in contravention of
any order of the court. While the United States does not yet know the substance of the directive,

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the most recently obtained recording of Warren Jeffs reveals that he has again dictated a specific
directive to John Wayman. 5
On November 26, 2016, Annette Jeffs (a wife of Warren Jeffs) and Melanie Jeffs (a daughter
of Warren Jeffs) visited him in prison in Palestine, Texas. During the visit, Warren Jeffs
referenced a recent revelation directed to John Wayman that Warren Jeffs previously provided to
the two women. Warren Jeffs then instructed the women not to give the directive to John
Wayman until such time as Warren Jeffs specifies.
The last time Warren Jeffs issued directives to John Wayman and Seth Jeffs, of which the
government is aware, both defendants complied with Warren Jeffss directives in specific
contravention of the courts express orders. Given their long standing devotion to Warren Jeffs
and their demonstrated propensity to violate the law and specific court orders at his direction,
including their participation in the instant fraud scheme and their previous obstructive conduct
that led to Seth Jeffs felony conviction, the United States possesses no confidence that the court
can set conditions that will sufficiently assure the reappearance of the defendants and preclude
the obstruction of justice.
The United States respectfully contends that the record evidence overwhelmingly
establishes that no set of conditions can satisfy the concerns of 18 U.S.C. 3142. Therefore, the
United States urges the court to deny the motions to reconsider detention.

The United States will offer the recording as detention Exhibit 182. The relevant portion of the
recording appears at minute 00:54.

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DATED this 15th Day of December, 2016.

United States Attorney
/s/ Robert A. Lund____________
Assistant United States Attorney