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Is Oly case dead in water?

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The Justice Department's case against former Olympic bid leaders Tom Welch and Dave Johnson cannot survive without four pivotal racketeering charges dismissed by a federal judge in July, the men's attorneys say.

Without the key charges, the remaining 11 criminal charges — 10 counts of mail and wire fraud and a single conspiracy count — also must be dropped, according to documents filed Friday afternoon in U.S. District Court.

The 24-page document is in response to the government's intention to pursue its pared-down case against Welch and Johnson, accused of using 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.

But defense attorneys maintain all charges in the original 15-count indictment are "intensely intertwined" with one another and suggest the grand jury would not have indicted the pair on fraud and conspiracy charges alone.

"There is every reason to believe that the inclusion of illegal bribery in the indictment was the straw that broke the camel's back," the response states. "The allegations of bribery and fraud in this case are not segregable, and the improper bribery allegations have deeply permeated the remaining portions of the indictment."

U.S. District Judge David Sam's July 16 dismissal of the racketeering charges came as a surprise, as U.S. Magistrate Ronald Boyce had already upheld all 15 charges in pretrial motions. Sam called the charges, which were based on Utah's commercial bribery statute, an "uninvited federal intrusion into state criminal prosecutions."

Utah officials "elected not to prosecute" Welch and Johnson, Sam said, and the federal government should have done the same.

The men's trial date has been postponed indefinitely.

Federal prosecutors did not return calls for comment Friday. They have previously maintained, however, that all references to bribery can be removed from the charges and the indictment can still stand.

In Friday's filing, defense attorneys scoff at moving toward trial on a "surgically reconstructed indictment."

"There is little doubt that the government presented this case to the grand jury as a unitary scheme in which (Welch and Johnson) bribed IOC members in violation of Utah law and concealed those alleged acts of illegal bribery from the trustees of the bid and organizing committees," the response states.

Without the bribery charges, there is nothing on which to convict Welch and Johnson, their attorneys contend.

"There is no question that the (bid and organizing committees) wanted Welch and Johnson to spend its money and no question that (committee members) wanted them to spend the money to win the bid," the response states. "This indictment now presents only the question whether the manner in which (Welch and Johnson) spent the money was, in retrospect, wise or ethical, not whether they stole it."

Regardless of the answer to that question, the "remedy is employment action, not federal criminal prosecution."

Also on Friday, defense attorneys filed a motion for the release of federal prosecutor's instructions to the grand jury. According to the motion, the instructions likely were "deficient" and failed to inform jurors they had to determine Welch and Johnson "intended to inflict economic harm on the bid committee or that they had to intend to gain personally by their conduct."

E-mail: awelling@desnews.com