SWALLOW AND SHURTLEFF CHRONICLED PART 37 OF A SERIES

SWALLOW AND SHURTLEFF CHRONICLED PART 37 OF A SERIES The Marc Jenson Epicenter Is it good guys versus bad guys? Or is it a pissing match among skunks? by Lynn Packer April 21, 2014 A myriad of key witnesses are forming the criminal case soon to be brought against former Utah Attorneys General Mark Shurtleff and John Swallow. Among other possible defendants. But, the keyest witness, the witness at the epicenter of the earthquake about to rock Swallow s and Shurtleff s world, is Marc S. Jenson. Who now sits in Davis County jail as the result of what his attorneys claim is a vengeance prosecution by Shurtleff and Swallow. A prosecution that continues under newly appointed AG Sean Reyes. It s like a Wild West shootout: Jensen, who accuses the AG s office of malicious prosecution. And the AG s office that accuses Jenson of fraud. Jenson is now serving time for one alleged fraud and is awaiting trial on charges on another related to a failed central Utah golf course and ski resort development. Both cases were brought by what is now widely believed to be a corrupt Attorney General s office. Yet Jenson s attorneys, so far, have been unable to spring their client from jail despite all the evidence he s incarcerated as a result of a vengeful prosecution. In addition packerchronicle also documented the fact that the AG s office used illegal investigative subpoenas to gather evidence against Jenson. (See Report 36 on this site s archive page.) Jenson s attorneys expected newly appointed Attorney General Sean Reyes, who inherited the Jenson cases, to have quickly dealt with the matter and, at least, release him from jail as the mess is untangled. That never happened. I was promised by this new AG's Administration that they would make the Marc Jenson matter a high priority and that they would investigate wrongdoing by the former administrations, and if bad acts were discovered that they would take responsibility and take action to free Marc Jenson immediately, says one of Jenson s attorneys, Helen Redd. We feel it is plain and obvious given the Legislative Report, that Marc Jenson was victimized through a pattern of malicious abuse of process. We anxiously await action by the Attorney General and his office. Reyes did appoint a three-attorney team headed by former federal judge Paul Cassell at taxpayer expense to evaluate the Jenson matter. The team s final report was scheduled to have been delivered last week. Jensen s defense team is scheduled to meet with Reyes tomorrow (April 22). Reyes, so far, retains Scott Reed as his criminal division chief. Reed was heavily involved in pursing both cases against Jenson. After Jenson s attorney raised the

vengeance issue on the second case it was Reed who last year chose Utah County Attorney Tim Taylor to take over as the AG s outside, lead prosecutor. Meanwhile Jenson continues cooperating with the FBI. Just this month he turned over his laptop without deleting silly emails and photos of naked women he d been sent so the FBI could mirror the hard drive to search years of emails and other records he may deleted but are possibly be recoverable by IT forensic experts. Jenson says he has nothing to hide. He is not only cooperating with chief prosecutors Sim Gill and Troy Rawlings and the FBI but also freely granting interviews and providing records to reporters. It s his warts-and-all, what-you-see-is-what you-get defense. The Mt. Holly Case Jenson s alleged crimes have been widely reported by the press including packerchronicle. (See the archive page on this site.) Jenson is charged with communications fraud and, money laundering involving the failed Mount Holly Ski and Golf Resort east of Beaver, Utah. New facts about Mt. Holly continue coming to light. Two Mt. Holly investors, Dr. Jeffrey Donner and Tim Bell, who prodded the AG into taking action against Jenson, first accused two other principals of fraud but later blamed Jenson. The Utah law firm Holland & Hart was retained by Donner and Bell to funnel records to the AG. Bell, both an investor and Mt. Holly s former marketing director, had befriended Jenson when they attended the same Holladay, Utah LDS Ward Bell changed allegiances when the AG helped save Bell s home from foreclosure. Until the two parted ways Bell repeatedly emailed Jenson nude female photos. DA Sim Gill s brother, Dr. Sarj Gill, is a business partner with one of the complaining investors, Dr. Donner. Sarj Gill briefly considered investing in Mt Holly but declined after being flown by private jet to Las Vegas for wining and dining and a side trip to Mt Holly as Marc Jenson s guest. Donner once contacted Dr. Gill s brother, Sim, to seek criminal charges against Jenson. (DA Gill referred Donner to the AG s office. Now Jenson is one of DA Gill s main witnesses against the two former AGs.) 2

Jenson says he first met Tim Bell when they lived in the same Holladay, Utah neighborhood and Jenson taught Bell in Sunday School. Later Bell took over his father s medical device company, BellMed Resources, and moved to Colorado. In 2008, according to Jenson, Bell wanted to move back to Utah from Colorado and work for Mt. Holley after losing a major medical account and recovering from a motorcycle accident. Bell was named director of marketing and he made a $500,000 down payment on his own Mt. Holly Club membership. All the while he was building a posh new home in Holladay, a house that a few years later would become connected to the AG corruption scandal. Bell helped pitch Mt. Holly memberships to Denver-area doctors he knew, among them Jeffrey Donner, Kenneth Pettine and Sarj Gill, Salt Lake District Attorney Sim Gill s brother. A typical promotional junket included picking up prospective investors by private jet; flying them to Las Vegas for food, drink, shows and a sales presentation; and flying to Beaver, Utah for an on-site visit to Mt. Holly. (Other lavish dog and pony shows were conducted in New York and Florida.) After disputes broke out between Jenson and his New York hedge fund partners, and as the recession began taking its toll, Mt. Holly became insolvent. (Marc Jenson and his brother, Mt. Holly Partners chief executive Stephen Jensen, believe the project would have succeeded despite the economic downturn if their new York hedge fund partners add lived up to their end of an operating agreement.) The collapse triggered multiple, civil lawsuits. Jenson claims the New York money backers used a series of financial and legal maneuvers to push Mt. Holly into bankruptcy, then buy it out of bankruptcy for cents on the dollar. The resort was reopened as Eagle Point. In April 2009 Bell wrote Attorney General Mark Shurtleff. He wanted two men investigated for suspected white-collar crimes. Marc Jenson was not one of them. Instead Bell blamed financial backers Robert O Neel and Shane Gadbaw. Bell told Shurtleff he was working as an independent contractor basis as a marketing specialist for the Mt. Holly Club. The letter details a long and complex series of multi-million dollar transactions that led to foreclosure and, eventually, to Gadbaw splitting with O Neel and emerging as the new owner and operator. (O Neel who had been brokering big real estate deals around the world was meeting his demise at the same time he was dealing with Jenson. O Neel soon lost his Boeing 737 private jet, Mercedes Maybach and multi-million dollar homes in Santa Rosa, California and Hawaii.) Bell s letter further explained his role: 3

I was instrumental in bringing several other individuals to Mt. Holly who also purchased charter memberships Dr. Jeff Donner and his wife and Tracy Fox. Donner, Tracy Fox (who worked with Bell in the Colorado medical supply business) and a Utah investor would eventually underpin the AG s case against Marc Jenson as his primary victims. Donner became Mt. Holly s most vocal critic. He pressed Jenson for proof of the project s viability. Emails obtained by packerchronicle detail efforts by Jenson and Bell to verify their claims and to assuage Donner. They were not persuasive. Donner became increasingly concerned. In January 2009, three months before Bell wrote Shurtleff asking for an investigation into Gadbaw and O Neel, Donner retained the Utah law firm Holland & Hart to represent him and his wife. Instead of pointing his finger at Gadbaw and alleging fraud, like Bell had, Donner reached a deal with Gadbaw to salvage part of his investment. Bell changed his strategy. He teamed up with Donner as a Holland & Hart client. Bell no longer saw Gadbaw as a primary victimizer but Marc Jenson and his brother Stephen. Donner and Bell did not ask Holland & Hart to sue the Jensons in civil court to recover their lost investments. Instead they had the law firm prepare case materials for the Utah Attorney General s Office to promote a criminal prosecution. Bell, so far, declines direct comment. But his Colorado attorney, Jeremy Swift, told packerchronicle that in about December 2010 his client, Bell, and Donner came together to have Holland & Hart represent them in their claims against Jenson. He said the pair were not working toward a civil lawsuit but were sort of marshaling information for purposes of furthering the AG s investigation. He said it was a criminal action with the possibility for restitution. Swift said in in the spring of 2011 Holland & Hart said they could no longer represent Bell because supposedly the Utah Attorney General s Office had reopened its inquiry in connection with Mr. Bell. Bell and Donner ran up a sizable tab with Holland & Hart. That led to a dispute between the two over payment after Bell was rejected as a client. Donner is suing Bell for $400,000 for breach of contract, a matter still pending in Colorado court. Donner s and Bell s former Holland & Hart Attorney, Carl Barton, said his firm did not investigate the Jensons but collected a bunch of information to provide the AG s office. He said they emailed, phoned and met with Kirk Torgensen, Scott Reed and one of their investigators. Clearly, for a while, Bell was a target of the AG s Mt. Holly probe. But then, somehow, he became untargeted; only Marc Jenson and his brother Steve were charged in 2011. John Swallow may have played a role in Bell getting off the AG s hook. Prior to joining the AG s office as a chief deputy Swallow worked as a consultant for Mt. Holly. Marc Jenson said Bell and Swallow worked out of Mt. Holly s Holladay office on Phylden Drive. (Swallow denies any significant involvement with Mt. Holley. But Jenson claims Swallow asked to represent Mt. Holly and told Jenson he planned to go to work for the Attorney General s office as Shurtleff s hand-picked successor. Jenson claims he hired Swallow as a consultant in exchange for a lot at the resort.) 4

The Utah House Special Investigative Report released last month described John Swallow s interactions with Tim Bell and his wife Jennifer in connection with the couple s fight to stop Bank of America s foreclosure on that Holladay home they built when they returned to Utah. The report concludes that the Bells persuaded the Attorney General s Office to intervene in their lawsuit to stop foreclosure and to prosecute Marc Jenson for fraud. Report excerpts: The information received by the Committee suggested that in July 2012, the Office of the Attorney General, with Mr. Swallow s official involvement, inserted itself into that litigation and sought to bar the foreclosure, and that at around the same time the Bells hosted a fundraiser for Mr. Swallow s campaign for attorney general. The Committee was also told that then- Attorney General Shurtleff later improperly caused the Office to dismiss its own claims against Bank of America and ReconTrust in the case. The Office s litigation, if successful, could have helped thousands of Utahns facing similar foreclosures. It was alleged that Mr. Shurtleff dismissed this action to protect Mr. Swallow from having to grapple with troublesome questions arising from his and the Office s multi- pronged entanglement with the Bells.......... Based upon its investigation, the Committee concludes that Mr. Swallow was actively involved in the Bells lawsuit after the campaign fundraiser held for his benefit, and that he appears to have used his position in the Office to help the Bells get a favorable settlement in their (foreclosure) case, thereby saving their home from foreclosure. The Committee s evidence further suggests that Mr. Swallow led Bank of America to believe that the Office would drop its own affirmative lawsuit against the bank in exchange for the bank s settling with the Bells, thus improperly offering to compromise the State s legal position in favor of Utah citizens generally in order to obtain a private benefit for a campaign contributor. The report affirmed that Bell had previously communicated with Mr. Shurtleff and had dealings with the Office in connection with its fraud case against Mr. Jenson. It said, One individual that the Committee interviewed suggested that Mr. Bell proposed hosting a fundraiser in part to thank Mr. Swallow because the Office had put Marc Sessions Jenson in jail. When interviewed by the Committee, the Bells themselves did not identify the Office s prosecution of Mr. Jenson as a reason for their support of Mr. Swallow. Jenson s attorney says her client was surprised when Bell switched from blaming O Neel and Gadbaw to blaming the Jensons. Jenson and and Bell had exchanged dozens of emails during the year or so Bell worked for Jenson. Many emails dealt with Dr. Donner s ever increasing concern about the viability of the project and the accuracy of disclosures. An except from an email Bell sent Donner and copied Jenson: As I ponder some of your concerns, I hope, pray and desperately seek a way to get you confident, assured and ardently committed to the success of our mutual investment. I don't know if you've had a chance to call John Swallow, Esq. (cell 801-949- 9450) of Mark Shurtleff's office (Utah AG)? If you haven't, I'd like to encourage you to do so! I am SO hopeful; you can find a way to get re- energized as to the efficacy, validity and excitement of the Mt. Holly Club project! This is as REAL as I type this email Jeff, and I am beside myself as I continue to sense your frustrations, and focus on the "challenges". As I've run multiple businesses, and been a party to various ventures, I've never been a part of any endeavor free of challenges and 5

issues. I know Marc's "personal challenges" give you angst, but in- spite of what are "personal challenges", I am so impressed with he and MHC's willingness to fully disclose. Tim Bell Director of Marketing tim@mthollyclub.com Cell Phone (deleted) http://www.mthollyclub.com/ World's finest private ski/golf resort Even though Bell declined an interview he did ask his other attorney, Abe Bates to respond. Bates said his client had not shown him any of his Mt. Holly emails. He said Bell was never actually employed by Jenson and never had an official job title. Bates was not aware Bell himself used the title Director of Marketing. Yet many of Bell s emails like the one above show otherwise. After reviewing one of the emails provided by packerchronicle Bates said Bell might have used the title for a function he never performed. Tim did not engage in the activities or fulfill the duties contemplated by such a title because the written employment agreement related to the position was never formalized or signed by either of them and no payment was ever made to Tim, Bates says. These marketing functions were performed in fact and ultimately, officially and in a paying capacity, by Shawn and Teresa Moore. It is reasonable to conclude that Jenson s illusory promise of a highlevel paid position--director of Marketing--to Tim was intentionally designed to secure his cash investment in the project, Bates said. Once Tim had made his $500K cash investment, Jenson failed to follow through on his promise to formally hire Tim or pay Tim for his preliminary efforts. Bell, according to Jenson, attended marketing meetings in Nevada, Florida and New York. In August 2008 Bell emailed a Colorado Springs doctor saying, I've taken a full-time position with the Mt. Holly Club, and wanted to follow-up with you as to getting involved with what we're doing. Let me know when you have time for a follow-up conf-call with Marc to talk about the opportunity, he wrote. The Bell/Jenson emails reflect the long friendship between the two. They address each other as bro. Many of the emails were whimsical and not business-related. Perhaps dozens Bell sent Jenson were of nude woman, especially buxom bare breast shots. Bates says his client and Jenson did sometimes exchange pictures of naked women and sometimes used language that could or would be considered foul or inappropriate to other people. The fact that two adult male, close friends engaged in communications about women, even if vulgar, profane, or pornographic, is irrelevant to the fraud charges Jenson is facing on the Mt. Holly project or the previous fraud charges he pled out to. But 6

Bates says while sending porn has nothing to do with an individual s credibility on the stand it would, in a newspaper, make them look bad, look not credible, in the court of public opinion. Bell came to agree with Dr. Donner who calls Jenson a seasoned fraudster. Donner says he called and emailed Shurtleff who initially did nothing. Bell s attorney says the effort to get the AG to investigate was made jointly by the Bells, the Donners, and a third investor by the name of Tracy Fox. Bates explained the chronology from his client s perspective: These efforts commenced when Mrs. Bell sent Shurtleff an email in early 2009. Shurtleff called Mrs. Bell about twenty minutes after receiving the email and instructed her to contact his secretary to schedule a meeting. Tim then called the Donners and Ms. Fox. All of them attended this initial meeting with Shurtleff, Torgensen, and other AG staffers. As I previously told you, Shurtleff and his deputies rebuffed the Jenson victims by framing their allegations in a civil context and essentially telling them they only had a civil remedy and the State would not be a party to such an action. Shortly after this (summer 2009) the three investor parties hired Holland & Hart to represent them in their efforts to recover against Jenson and in their future dealings with the AG (each party waiving any claim they may have had against each other). Bates says Shurtleff, at that time, was trying to protect Jenson. After that Bates says the AG s office retaliated against the Bells, informing them they were targets of the very investigation they demanded. Bates said they hired a criminal defense attorney, Max Wheeler (who now represents Mark Shurtleff). Nothing came of that, Bates says. They were never asked to do any subsequent interviews, deposed, provide documents. He said the Bells were never treated as targets. Bates says he was not pleased when more than a year later, when Shurtleff left office, that he implied the Bells remained targets. Bell is also a person of interest in a fraud matter we are investigating, Shurtleff had told the press in December 2012. The Sim and Sarj Gill Conflict Was it a meaningless coincidence? That Salt Lake County District Attorney Sim Gill s bother Sarj happened to have met Marc Jenson, visited Mt. Holly and, for a brief moment, considered investing? Dr. Sarvjit Sarj Gill is a Denver-area surgeon who once officed in the same professional building as Jeffrey Donner and was also a business partner with Donner in some real estate holdings. In April 2008, Dr. Gill, Donner and another prospective investor, Dr. Kenneth Pettine, were flown by private jet from to Las Vegas for a sales pitch, entertainment, and then on to Mt Holly for a close-up inspection of the planned resort site. Dr. Gill said it was a low-pressure trip recalling that Jack Nicklaus was a potential investor. He said after the trip there might have 7

been a follow-up call but he and his wife passed on the investment giving it no consideration. He told packerchronicle that he felt uneasy with Marc Jenson and his brother Steve. After I had met them I just felt like these guys are over the top, he said. Marc Jenson recalls it a bit differently. He said Dr. Pettine made a proposal for himself and the other doctors including Gill. They wanted to buy in but for a lot less than the asking $1.5 million per membership. Jenson said he rejected their offer. Tim Bell s attorney, said, Dr. Donner brought Dr. Gill and another Dr./associate/friend of Gill s to the event. Dr. Gill and this other doctor were very close to buying into Mt. Holly--splitting a membership. However, Jenson was leaning hard on the two to buy separate memberships. As a result, neither Dr. Gill nor the other doctor invested, Bates said. Marc Jenson, re-interviewed recently in Davis County Jail, said it was just late last month he learned that the Dr. Gill, who considered investing in 2008, is the brother of Sim Gill, who granted Jenson immunity in exchange for his testimony against Shurtleff and Swallow. Jenson s attorney Helen Redd said she also just learned of the Gill relationship. As to Sim, she said, the connection between Sim Gill's brother and the Mount Holly matter is surprising to us and we are anxious to see what implication, if any, there may be. Bates said the Gill s connection and its possibility of raising conflict of interest concerns was known by the AG s office last year when Jenson s attorneys were asking that the AG s office recuse itself and substitute outside counsel. He believes Jenson or at least his attorneys have long known about the Gill conflict. Maybe it s true that Jenson himself did not know. I m quite confident that is what his lawyer knew, Bates said. He said he discussed the possible conflict with reporters from the Salt Lake Tribune and Deseret News but neither paper reported it. One implication of the potential conflict involves who took over prosecuting Jenson for alleged fraud in the Mt. Holly case. Bell s attorney Bates said once the AG s office decided to dial back its involvement because of alleged conflict of interest the Mt. Holly case logically would have gone to Sim Gill in Salt Lake County for prosecution. Instead the AG s office asked Utah County Attorney Tim Taylor to become lead counsel, even though proceedings were taking place in Salt Lake s Third District Court. I have confirmed that the reason it went to Utah County is because of this conflict with Sim, Bates says. Bates says the AG s office knew about Sarj Gill and that it would have been a conflict for his brother to prosecute. Packerchronicle interviewed Sim Gill and Troy Rawlings during a conference call, inquiring about any possible conflict of interest. Gill said he got a phone call from Dr. Donner in 2010 or 2011. He said Donner told him he knew his brother and they were 8

in a medical practice together. Donner, according to Gill, was looking for a local contact to pursue a criminal case against Jenson. I sent him to the AG s office, Gill said. The DA said he had no significant recollection of discussing the Mt. Holly matter with his brother. He said he disclosed the relationship to his co-prosecutor Troy Rawlings and to the FBI. But 2009 Donner, well before he would have called DA Gill, had already made contact with the AG s office. Bell s attorney guesses Donner called Sim Gill in 2009 or 2010 when the AG was stonewalling and not pursing Jenson. In 2011 when Jenson was criminally charged in connection with Mt. Holly Donner was listed as one of Jenson s fraud victims. But now, three years later, if the case proceeds to trial, Donner will likely be dropped from the victim list and merely be a potential witness. If the case ever gets to trial. Jenson s attorneys continue portraying the AG s case as a malicious prosecution. Their case that the AG s office is victimizing Marc Jenson may end up overwhelming the AG s case that Jenson victimized Donner or any other Mt. Holly investor. The Marc Jenson Flow Chart The accompanying flow chart on the next page shows some but certainly not all key players that surround the Marc Jenson epicenter. There is an array of witnesses who are providing the AG s office testimony against Marc Jenson. Jenson has been providing the FBI testimony against the two former attorneys general who began prosecuting Jenson. Two prosecution teams continue to be engaged. Reyes took over the Shurtleff/Sallow case against Jenson. He decided to leave Utah County Attorney Tim Taylor in charge. Taylor was purportedly walled off or screened from Assistant AG Scott Reed who had been prosecuting Jenson. But Reed was the one who chose Taylor and the AG s investigator is still working the case. Jenson s lawyers tried unsuccessfully to get the judge to kick the investigator off the case and they re openly skeptical about the solidity of the wall between Reed and Taylor. It may be leaking like a sieve. Jenson s attorneys also believe Rawlings and Gill have uncovered exculpatory evidence, that is evidence that could help Jenson combat criminal charges against him. But in a sealed letter to the court prosecutors outlined reasons why they cannot share significant portions of the evidence they re gathering. Because Jenson is among main witnesses in the case Gill and Rawlins are are building against Shurtleff and Swallow, it s in their interest to stay on good terms with Jenson. 9

It s not known how prosecutors plan to position Jenson. If they plan to portray him as a good guy who got beat up by bad guys Shurtleff and Swallow then their case is enhanced if Jenson beats the Mt. Holly rap. But if they plan to position the Jenson- Swallow/Shurtleff relationship as a pissing match between skunks, with Shurtleff and Swallow showcased as bigger skunks, then it matters less how many criminal convictions might be racked up against Jenson. There are lots of players on the Jenson Flow Chart who have fallen in and then out of love. Tim Bell and Marc Jenson. Jeff Donner and Tim Bell. They were once both engaged in pursing the Mt. Holly dream. When the dream turned to a nightmare they complained together to the AG and engaged Holland & Hart. Today Donner is engaged in a lawsuit against Bell. Same with the relationship among Marc Jenson, Robert O Neel and Shane Gadbaw. One minute, together, they re all pouring millions into Mt. Holly. The next Jenson is getting pushed out of the project, O Neel too, and lawsuits follow. The Tim Bell/Mark Shurtleff relationship was also a love-then-hate fest. First Bell is helping the AG make a case against Jenson via Holland & Hart. Then the AG makes Bell a target of the probe and Holland & Hart drop Bell as a client. Then Bell makes campaign contributions and the AG s office helps him avoid foreclosure. And Bell avoids criminal charges. * * * * * 10