Federal authorities have been probing allegations of crimes involving the Fundamentalist LDS Church and its leader Warren Jeffs for years — but have been unable to develop enough probable cause to launch a full-scale investigation or bring charges.
"Those cases where you hear rumor and innuendo about child brides and corruption, we have to have reasonable suspicion to open an investigation," U.S. Attorney for Utah Brett Tolman said Thursday. "Beyond that, we have to have probable cause to even get search warrants and grand jury subpoenas. That we have not been able to establish on numerous occasions."
In an extensive interview with the Deseret News on Thursday, Tolman and Tim Fuhrman, the special agent-in-charge of the Salt Lake City office of the FBI, detailed their efforts to investigate crimes within the FLDS Church. They also spoke against the need for a federal task force on polygamy-related crimes, despite a push by the U.S. Senate majority leader and the Utah and Arizona attorneys general.
"The crimes that are being alleged or that there is suspicion, these are predominantly state crimes," Tolman said. "I think it's a rush to judgment to think that a federal task force is the answer."
Investigations
The U.S. Attorney for Utah confirmed to the Deseret News his office has looked at the FLDS Church for possible violations of Mafia-style racketeering and corruption laws.
"We remain open to pursuing that line of investigation," Tolman said. "Investigating a RICO (Racketeer Influenced and Corrupt Organizations Act) charge is labor intensive, requires someone on the inside and has to be done with great patience. It's certainly not something that would result in a raid on the FLDS and all the members and families in the community. We still would have to provide probable cause on each and every individual that's the target of the investigation."
Right now, Tolman said that all his office has is suspicion and nothing more. Child abuse, rape and incest are all state-level crimes. So is bigamy.
"We have the ability to prosecute transferring or crossing state lines for purposes of sex, and we had a case a couple of years ago that we investigated," Tolman said. "When the young woman was interviewed, she indicated that no sex had ever occurred. At that point we're very limited outside some evidence to help us establish probable cause."
It is a problem their state-level counterparts can relate to.
"That's been the challenge with these closed polygamy groups. You can't infiltrate them," said Kirk Torgensen, chief deputy of the Utah Attorney General's Office. "Getting intelligence and information is difficult."
It isn't for lack of trying, authorities insist.
"We open and close more investigations than we prosecute," said Fuhrman.
Probable cause
In 2003, a joint state and federal task force was convened to look into crimes within all of Utah's polygamous groups.
"We asked them to come out and take a more comprehensive look at things," Torgensen said. "The agencies came back and said, 'We're not finding anything."'
The U.S. Attorney's Office said it did not develop enough for subpoenas, search warrants or indictments.
"The fact that everyone may think something's going on ... ask Elliot Ness how easy it was," Tolman said. "He knew, and he knew Al Capone was involved. It still took quite a bit. It takes a lot, and it takes a concerted effort. Even though everyone may be clamoring, it doesn't make for a federal case."
Tolman said they still need probable cause.
"No matter what, we still have to abide by the Constitution and our criminal procedure rules," he said.
An attorney acting as a spokesman for the FLDS Church declined to comment on Tolman's remarks but said he could appreciate their approach toward probable cause.
"That's a much more responsible approach than what's been taken in Texas with respect to the Constitution," said Rod Parker.
The raid on the YFZ Ranch began April 3, when someone claiming to be a 16-year-old girl named "Sarah" called a family crisis shelter in San Angelo, Texas, saying she was pregnant and in an abusive polygamous marriage. Authorities are now investigating if the call was a hoax.
When Texas child welfare workers responded to the ranch, authorities said they found evidence of other abuse, including teenage mothers. That prompted a judge to order the removal of more than 450 children from the FLDS compound. They have since been placed in foster care homes across Texas.
Warren Jeffs
Federal prosecutors have leveled a charge against Warren Jeffs for unlawful flight to avoid prosecution.
Jeffs, at the time on the FBI's Ten Most Wanted list, was arrested outside Las Vegas during a traffic stop in 2006. Typically, when a fugitive is arrested, federal authorities dismiss the charge. Instead, Jeffs was indicted by a grand jury.
The 52-year-old FLDS leader was convicted last year in Utah of rape as an accomplice, accusing him of performing a marriage between a 14-year-old girl and her 19-year-old cousin. In Arizona, Jeffs is facing more charges accusing him of similar crimes.
On the final day of the police search of the YFZ Ranch, FBI agents executed a search warrant.
"We have consulted to some extent with my counterparts in Dallas," Fuhrman said. "A lot of it is education because of the experience we have had here."
The evidence seized from the Cadillac Escalade that Jeffs was riding in when he was arrested is the subject of legal battles over whether it is privileged communications between the polygamist leader and his followers. Fuhrman said the FBI has cooperated with other agencies, to the extent they could but added it is an ongoing investigation.
Task force?
Senate Majority Leader Harry Reid is urging the U.S. Justice Department to create a federal task force to look into polygamy and related crimes.
The Nevada senator accused Utah and Arizona of doing nothing about crimes in polygamy and said he was "embarrassed" for them. That angered Utah Attorney General Mark Shurtleff and Arizona Attorney General Terry Goddard, who penned a letter detailing prosecutions and victim outreach in polygamous communities. The two sides have now agreed to work together.
Beyond the rhetoric, Tolman said he did not believe a federal task force was necessary and said publicly announcing it inhibits any ability to actually investigate. Torgensen hopes they can still get federal input. "It wouldn't hurt to sit down one more time with our federal partners and walk through some of the potential issues," he said Thursday.
Tolman is willing to work with state authorities.
"We can't exceed what our authority is, and if people are clamoring for a federal task force as if that's the answer, I would argue that's red herring," he said. "What is really required is good, solid, investigative efforts on the part of state agencies ... added to that is whatever ability the FBI or others may be able to assist."
