Former state Sen. Andy Sanborn and his wife, current Rep. Laurie Sanborn, in 2019 at their casino in Concord, which the state forced him to close in January amid pandemic loan fraud allegations. (Courtesy of Geoff Forester | Concord Monitor)
Andy Sanborn’s battle against the state to keep his gambling license long enough to sell his casino has been waged publicly for more than a year. Since at least May, his lawyers have been waging a second battle behind closed doors, this time over documents and images seized by the state during a search of Sanborn’s Concord business.
On Monday, at the request of the Bulletin and Sanborn’s attorneys, the court released nearly 530 pages of a lawsuit Sanborn’s legal team filed against the attorney general’s office in July.
One of Sanborn’s questions to the court is whether members of the state investigative team saw enough privileged information, such as his communications with his legal team, to justify removing them from the case.
If this were a criminal case, this would be a defense strategy to suppress jury evidence. Here, Sanborn’s legal team challenges the state’s handling of privileged information in an effort to get ahead of potential pandemic fraud allegations that the state began investigating a year ago.
That investigation focuses on allegations that Sanborn misled federal authorities to obtain $844,000 in pandemic loans and then spent the money illegally to enrich themselves. 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 Republican from Bedford, Formella said.
It was these allegations that led the state to go after Sanborn’s casino license more than a year ago. That case is pending; Sanborn has until mid-November to sell or lose his licensehis only real possession, for two years.
Here are three takeaways from the newly unsealed documents:
Sanborn subject of federal and state search warrants
The court filings confirm for the first time that federal authorities joined the state in seeking a search warrant against Sanborn, something the U.S. Attorney’s Office in New Hampshire would not comment on.
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) you dealt with regarding the warrant?” Hafer wrote. “Can you also tell us the approximate date you received the federal warrant and turned over the drives?”
In his response the next day, Jimenez identified the accuser and said federal authorities had seized the computer drives the state obtained during its search in early July.
Sanborn’s legal team claims the state seized 1.7 million files from boxes of documents and computers during its May search. Among them, they argued, are “thousands” of their emails to Sanborn containing legal advice, legal briefs and witness statements related to both the criminal investigation and Sanborn’s licensing case.
“That is, the risk here is not that the (attorney general’s office) stumbles upon obscure legal advice from (Sanborn’s) commercial real estate attorney, but that it (the attorney general’s office) Sanborn’s strategy is in his possession. in this particular 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 implement a “filtering protocol” to ensure that the investigative team only saw the seized materials after the privileged materials had been removed. They also allege that the state promised, but did not allow them, to examine seized material before providing it to the investigative team.
“It is impossible for a court later to force plaintiffs to undo what they unlawfully saw,” Knights wrote.
In their lawsuit, Sanborn’s attorneys asked the court to prevent the state from reviewing any more files until that protocol was in place. That protocol is now in place.
The judge asked questions about the state’s search warrant
The judge overseeing the case in Merrimack County Superior Court has questioned 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 could seize privileged materials.
He noted that the state Supreme Court has ruled that protections must be put in place around privileged information.
“It’s quite clear that I have some concerns about the process that was followed,” Kissinger told Jimenez, according to a transcript of the hearing released Monday.
Kissinger also said, “And here, doesn’t it matter even more when you’re talking about someone who is the subject of an ongoing criminal investigation?”
After that hearing, the state filed affidavits from the investigators who executed the search warrant and others in the office that privileged materials had not been reviewed by the investigative team.
Kissinger has scheduled a hearing for the end of October to further investigate the matter.
The state defends its handling of seized documents
The Public Prosecution Service has informed the court that it has adequately protected the confidential information it obtained from the team investigating Sanborn. They also noted that both Andy and Laurie Sanborn were at the scene on the day of the search and assisted the State in identifying the materials listed on the search warrant.
“The (search warrant) was not intended and was not intended to include 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 attorneys that the team that would screen for confidential materials would include attorneys, an investigator and support staff from outside the criminal agency leading the investigation.
The agency reiterated to Sanborn’s team in July that it had adequately protected 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 attorneys) have not made any specific allegation of breach of privilege at this time,” Jimenez wrote in July in a response to Sanborn’s lawsuit.
