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Gollaher v. State

Court of Appeals of Utah

September 8, 2017

Scott Logan Gollaher, Appellant,
v.
State of Utah, Appellee.

         Third District Court, Salt Lake Department The Honorable Robin W. Reese No. 140901901

          Edwin S. Wall, Attorney for Appellant

          Sean D. Reyes, Laura B. Dupaix, and Mark C. Field, Attorneys for Appellee John W. Huber, Jeannette F. Swent, and John S. Koppel, Attorneys for Amicus Curiae United States of America

          Judge Jill M. Pohlman authored this Opinion, in which Judges Stephen L. Roth and David N. Mortensen concurred. [1]

          POHLMAN, JUDGE.

         ¶1 Scott Logan Gollaher appeals the district court's denial of his petition for extraordinary relief. Because Gollaher has not addressed the basis for the district court's ruling that other plain, speedy, and adequate remedies are available to him, we affirm.

         BACKGROUND

         ¶2 The State filed criminal charges against Gollaher for sodomy on a child and sexual exploitation of a minor. The State's evidence includes images purportedly showing Gollaher performing oral sodomy on the alleged child victim (Child). The images show Gollaher's face but do not show the face of the other individual. Both parties agree that the images are pornographic and may constitute child pornography.

         ¶3 In his defense, Gollaher planned to call Child as a witness and to show her the images at his preliminary hearing. Gollaher believed that when shown the images, Child would provide exculpatory evidence by testifying that she is not the other individual depicted. Gollaher's plan, however, was frustrated by the fact that his defense counsel feared he could not show the images to Child without risking criminal and civil liability under state and federal law. According to Gollaher, federal and state authorities both declined to grant immunity to his counsel.

         ¶4 Before his preliminary hearing was complete, Gollaher filed two pertinent motions directed to the magistrate judge presiding over that stage of the criminal proceeding. Gollaher premised the first motion on his assertion that a "plenarius conflict of interest, " i.e., a complete and total conflict of interest for any attorney, existed because no defense counsel could legally show Child the images at the preliminary hearing or otherwise obtain the exculpatory testimony. Gollaher asserted that he was thereby denied due process of law and effective assistance of counsel under the federal and state constitutions. He therefore requested that the magistrate dismiss the case based on the conflict or, alternatively, rule that the state and federal criminal and civil statutes regarding child pornography are unconstitutional as applied to his case, "in so far as they preclude defense counsel from calling child-witnesses, and using, showing and possessing child pornography in court proceedings."

         ¶5 Gollaher's second motion related to subpoenas he had issued to three federal agents involved in the criminal investigation against him, seeking copies of their reports, notes, and recordings. In response to Gollaher's subpoenas, the United States Department of Justice (the DOJ) authorized the three federal agents to provide limited testimony in the criminal case, informed Gollaher that two of the agents did not have documents responsive to the subpoenas, and stated that federal regulations prohibited the other agent from disclosing any documents. Gollaher requested a court order that would exclude further testimony from the federal agents and strike any testimony they had already provided. He also asked the magistrate to order the federal agents to show cause why they should not be held in contempt for failing to fully comply with the subpoenas.

         ¶6 The magistrate denied both motions "without prejudice for lack of jurisdiction." In addition, at Gollaher's behest, the magistrate stayed the criminal proceedings pending resolution of Gollaher's planned petition for extraordinary relief in state court and any proceedings in federal court under the federal Administrative Procedure Act.

         ¶7 Gollaher subsequently filed this case in the district court, seeking extraordinary relief pursuant to rule 65B of the Utah Rules of Civil Procedure. Gollaher's petition sought to challenge the magistrate's interlocutory rulings denying his two motions. In support of his petition, Gollaher asserted that he had "no other plain, speedy or adequate remedies available to address [these two] issues . . . before the magistrate judge. " According to Gollaher, he had "no redress to the district court from an order of the magistrate prior to the conclusion of the preliminary hearing"; he was "without a remedy . . . as he [was] not entitled to an interlocutory appeal of the magistrate's orders"; and he "require[d] immediate redress, as [his two] issue[s] pertain directly to his due process rights at and during the preliminary hearing." Thus, he urged the district court to grant his petition by "dismiss[ing] the [criminal] case on grounds of there being a plenarius conflict of interest, " and by "enter[ing] an order striking the testimony of the federal agents and precluding them from further submission of testimony and evidence."

         ¶8 The district court denied Gollaher's petition for extraordinary relief. It reasoned that extraordinary relief could be obtained only if the person has no other plain, speedy, and adequate remedy. But the district court determined that plain, speedy, and adequate relief relating to the magistrate's denial of his two motions was available to Gollaher. Specifically, the district court explained that in the event Gollaher's case is bound over to the district court following a preliminary hearing, his remedy would be to file a motion to quash the bindover. If the magistrate were to deny the motion to quash, Gollaher could then file an interlocutory appeal. The district court concluded that "the relief provided by [this] course of action is plain, speedy, and adequate." Additionally, the district court concluded that Gollaher's ...


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