Unsealed records show Sanborn – and judge – questioned state’s handling of search warrant

By ANNMARIE TIMMINS

New Hampshire Bulletin

Published: 10-09-2024 8:00 PM

Andy Sanborn’s fight against the state to keep his gaming license long enough to sell his casino has played out publicly for over a year. Since at least May, his lawyers have been waging a second battle behind closed doors, this one over records and images the state seized during a search of Sanborn’s Concord business.

Monday, at the request of the Bulletin and Sanborn’s lawyers, the court unsealed nearly 530 pages of a lawsuit Sanborn’s legal team filed against the Attorney General’s Office in July.

Among Sanborn’s questions to the court is whether members of the state’s investigative team have seen enough privileged information, such as his communications with his legal team, to justify removing them from the case.

Were this a criminal case, this would be a defense strategy to suppress evidence from the jury. Here, Sanborn’s legal team is challenging the state’s handling of privileged information in an attempt to get ahead of potential pandemic fraud charges the state began investigating a year ago.

That investigation centers on allegations that Sanborn misled federal authorities to obtain $844,000 in pandemic loans and then illegally spent the money to enrich himself. About $181,000 of the money went to two Porsche 987 Cayman S racers for Sanborn and a Ferrari F430 challenge racer for his wife, Rep. Laurie Sanborn, a Bedford Republican, Attorney General John Formella said.

It was those allegations that led the state to go after Sanborn’s casino license over a year ago. That case is pending; Sanborn has until mid-November to sell or lose his license, his only real asset, for two years.

Here are three takeaways from newly unsealed documents:

Sanborn subject of federal and state search warrants

The court filings confirm for the first time that federal authorities have joined the state in seeking a search warrant against Sanborn, something the United States Attorney’s Office in New Hampshire has declined to comment on.

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In an Aug. 7 email, Sanborn attorney Zachary Hafer asked Senior Assistant Attorney General Dan Jimenez about the federal search warrant.

“Can you tell us the (federal prosecutor) who you dealt with re the warrant?” Hafer wrote. “Also, can you tell us the approximate date that you received the federal warrant and turned over the drives?”

In his reply the following day, Jimenez identified the prosecutor and said that federal authorities seized the computer drives the state had obtained during its search in early July. 

Sanborn’s legal team alleges the state seized 1.7 million files from boxes of documents and computers during its search in May. Among them, they argued, are “thousands” of their emails to Sanborn containing legal advice, legal briefs, and witness outlines related to both the criminal investigation and Sanborn’s licensing case. 

“That is to say, the risk here is not that the (Attorney General’s Office) stumbles upon an obscure piece of legal advice from (Sanborn’s) commercial real estate lawyer, but that the (Attorney General’s Office) has in its possession Sanborn’s legal strategy in this very case,” Attorney Mark Knights, a member of Sanborn’s legal team, told the court in July.

The lawyers have argued that the state initially failed to put a “filter” protocol in place to ensure the investigative team saw the seized materials only after privileged materials had been removed. They allege also that the state promised but did not allow them to review seized materials before they were provided to the investigative team.

“It is impossible later on for a court to compel prosecutors to unsee what they have unlawfully seen,” Knights wrote

In their lawsuit, Sanborn’s lawyers asked the court to stop the state from reviewing any more files until that protocol was in place. That protocol is now in place.

Judge raised questions about state’s search warrant

The judge overseeing the case in Merrimack County Superior Court has questioned state prosecutors about what they did – and did not – tell the judge who signed the search warrant. 

Judge John Kissinger asked Jimenez, of the Attorney General’s Office, why the state had not disclosed that it may seize privileged materials. 

He noted that the state Supreme Court has ruled that protections around privileged information should be put in place.

“(It’s) pretty clear that I have some concerns about the process that was followed,” Kissinger told Jimenez, according to a transcript of the hearing unsealed Monday.

Kissinger also said, “And here, doesn’t (it) … matter even more when you’re talking about somebody who is the subject of an ongoing criminal investigation?”

Following that hearing, the state filed affidavits from the investigators who executed the search warrant and others in the office that privileged materials were not viewed by the investigative team. 

Kissinger has scheduled a hearing for late October to further explore this issue. 

State defends its handling of seized documents

The Attorney General’s Office has told the court that it has sufficiently protected the confidential information it obtained from the team that is investigating Sanborn. They noted too that both Andy and Laurie Sanborn were on the premises the day of the search and helped the state identify the materials listed on the search warrant. 

“The (search warrant) neither sought, nor intended to encompass, privileged communications between (Laurie) and (Andy) Sanborn, or between the Sanborns and their attorneys,” Jimenez wrote in an email to Hafer on May 30.

He told Sanborn’s lawyers the team screening for privileged materials would include attorneys, an investigator, and support staff from outside the criminal bureau leading the investigation.

The office reiterated to Sanborn’s team in July that it had adequately shielded the investigative team from the privileged material. That same month, the office offered to share seized documents with Sanborn’s team.

“It is worth noting that (Sanborn’s lawyers) have raised no specific allegation of a privilege violation at this juncture,” Jimenez wrote in July in a response to Sanborn’s lawsuit.