Racketeering charges against Olympic bid leaders Tom Welch and Dave Johnson rely on a Utah bribery statute that is indeed rarely used, a federal judge said Monday.
But whether the pair broke the state law may be a matter of fact that should be determined by a jury, not a legal question upon which U.S. District Judge David Sam can rule before a trial begins on July 30, the judge told attorneys.
Sam made a brief statement before defense attorneys presented their oral arguments for dismissal of the racketeering charges.
He said he had thoroughly reviewed the 40-year history of the federal Travel Act and found that it was "not originally intended to substitute a federal penalty for an infraction of state law."
State prosecutors have said they could not find enough evidence to make a case of their own against Welch and Johnson under Utah's bribery law.
Sam said if he finds that the federal government has "overreached" in this case, he could determine the indictment is "unconstitutionally vague as applied" to Welch and Johnson.
Sam also said he has read Utah's misdemeanor commercial bribery law and noted that it has "never been applied to anyone so situated."
Welch and Johnson are accused of conspiracy, racketeering and fraud in connection with more than $1 million in cash, scholarships and gifts given to International Olympic Committee members during Salt Lake City's bid for the 2002 Winter Games.
Monday's hearing was significant, since it was the first time either side had appeared before the judge who will preside at the trial. Up to this point, pretrial matters have been heard by U.S. Magistrate Ronald Boyce.
Boyce has denied every one of Welch and Johnson's requests to dismiss the 15-count indictment.
The pair's lawyers have appealed Boyce's denials to Sam, who could potentially "overturn" them, although legal observers say that would be unusual.
"(The defense) is essentially looking at every possible point at which they can challenge the face of the indictments as well as make legal and factual challenges," explained University of Utah law professor Erik Luna. "It's just good lawyering."
Welch and Johnson maintain they did not break the law in securing the 2002 Winter Games for Salt Lake City.
Johnson's Salt Lake attorney, Max Wheeler, told Sam that Welch and Johnson did "what a bid city does" to win the Olympics. "They engaged in a lobbying effort."
"The rest of Utah is enjoying the fruits of these men's labors," while they face criminal prosecution, Wheeler said.
But government prosecutors told Sam that only the legal question of the indictments' sufficiency is before the court. The factual questions of whether IOC members were agents or fiduciaries of the IOC for selection of the Games is a factual matter that a jury should decide.
The prosecution argued that regardless of what IOC members thought about the gift giving, Welch and Johnson hid the payments from a board of trustees of the Salt Lake Bid and Organizing committees, and that is where the law was broken.
IOC members, meeting this week in Moscow to elect a new president and select the site for the 2008 Summer Games, have been frustrated and embarrassed by the prospect of a trial. Some fear they may be asked to participate in some way if Welch and Johnson's case is not settled out of court.
Sam took Monday's arguments under advisement and will rule later.