Northwest Arkansas Democrat-Gazette
Hutchinson requests dismissal of charges
Former senator: Evidence illegal
Former state Sen. Jeremy Hutchinson has asked a federal judge to dismiss wire and tax fraud charges against him, alleging the FBI illegally obtained evidence from a laptop computer stolen by Hutchinson’s former girlfriend.
Federal authorities later destroyed information from the laptop that would have supported Hutchinson’s innocence, according to a motion and memorandum filed by his attorneys Thursday in U.S. District Court in Little Rock.
The agency’s conduct violated Hutchinson’s constitutional rights, his lawyers argue.
“The charges in this case are the result of an investigation that started with
an illegal search of Mr. Hutchinson’s laptop and ended with the destruction of exculpatory evidence to cover up government misconduct,” according to the filing. “Ultimately, the government’s missteps reveal a pattern of gross misconduct that require this court to dismiss the indictment with prejudice.”
Hutchinson’s motion asks U.S. District Judge Kristine Baker to dismiss all charges “with prejudice,” which means permanently. Alternatively, it asks the judge to suppress any illegal evidence.
Jeremy Hutchinson’s father, former U.S. Sen. Tim Hutchinson, said in a statement Thursday that he was “shocked, stunned and outraged” at the FBI’s conduct in his son’s case.
“The FBI used coercive interviews, a warrantless search of Jeremy’s stolen laptop; the destruction of the laptop and the exculpatory evidence it contained which Jeremy needs to defend himself and the blatant violation of attorney-client privilege,” Tim Hutchinson said in the emailed statement.
The FBI office in Little Rock “will make no comment at this time,” a spokesman said Thursday.
U.S. Attorney Cody Hiland’s office also declined to comment. Prosecutors generally file written responses later through the court.
A federal grand jury on Aug. 30 indicted Jeremy Hutchinson, nephew of Gov. Asa Hutchinson, on 12 counts of wire and tax fraud and accused him of misspending campaign donations and underreporting his income on federal tax forms.
The Little Rock Republican resigned his state Senate seat the next day, as the indictment was made public, and subsequently pleaded innocent. He is free without bail.
A lawyer, Jeremy Hutchinson also has been linked to a federal bribery investigation involving a Missouri-based nonprofit health care provider, Preferred Family Healthcare Inc., and former Arkansas lobbyist and Preferred Family executive Milton “Rusty” Cranford. Cranford has pleaded guilty to paying bribes that, he said, went to Hutchinson, who is named in that case’s court records as “Senator A.”
The tax and wire fraud charges against Hutchinson do not include Cranford’s accusations.
The federal investigation into former officials of Preferred Family Healthcare of Springfield, Mo., and Cranford is part of a larger federal public corruption investigation in Arkansas, Missouri and Oklahoma that has ensnared at least six former Arkansas lawmakers, a former private college president, and Cranford.
Among the former lawmakers is state Sen. Jon Woods, R-Springdale, who is also named in Hutchinson’s filing Thursday and who is serving an 18-year sentence for fraud.
A 34-page memo filed in support of Hutchinson’s dismissal request includes these claims:
■ A woman identified as “Individual-1,” who had been involved previously in a romantic relationship with Hutchinson that he ended — and who had sought the state senator’s financial support — went to the FBI on Aug. 20, 2012.
She “falsely claimed” that Hutchinson “paid her with campaign money despite the fact that she had done only minimal campaign work.” She also alleged that a Hutchinson legal client, “Client-1,” paid the state senator “to pass favorable state legislation and not for bona fide legal work.”
■ The woman also provided the FBI with six electronic devices, including the Sony Vaio laptop that Hutchinson’s lawyers say she stole from his apartment. The FBI was aware from the beginning of the woman’s “personal animosity towards Mr. Hutchinson, but at no point did the FBI question her authority to access” the devices, the filing said.
The laptop contained Hutchinson’s law firm email and clients’ legal files. The laptop didn’t contain any of the woman’s files, and she didn’t have permission or a password to access the laptop, the memorandum said.
In the following weeks, the woman assaulted Hutchinson at his home and later vandalized an apartment Hutchinson rented for her, according to news accounts referred to in Thursday’s filing.
■ On Aug. 24, 2012, the FBI asked its lab to create mirror “images” of the contents of Hutchinson’s laptop and the other devices.
FBI documents note that the devices were obtained “with consent,” but Hutchinson “never gave consent to search his devices,” Thursday’s court filing alleges. Prosecutors also never provided a “Receipt of Property of Consent to Search form” for the devices. The government didn’t contact Hutchinson before searching his computer and “never sought a warrant to search the laptop she stole from him.”
The FBI didn’t protect files surrounding attorney-client privilege, or “seek approval from the U.S. Attorney or Assistant Attorney General to review the privileged materials with a special ‘taint team’ to protect attorney-client privilege,” Hutchinson’s filing alleges.
The memorandum also says the original laptop and devices were “believed” returned to Hutchinson’s former girlfriend in October 2012.
■ The FBI opened an investigation in June 2013 into whether Hutchinson used his elected position to benefit “Client-1,” according to Thursday’s filing.
The filing claims that FBI Special Agent Michael Lowe asked Hutchinson to take part in an interview under the false pretense of investigating a different individual.
At a June 11, 2014, interview, “it quickly became clear” that Lowe was investigating Hutchinson, the document says. Lowe presented emails from Hutchinson’s ex-wife, tax returns, bank records and campaign expenditure reports.
“The emails were likely procured from the unauthorized, unlawful search of Mr. Hutchinson’s laptop,” the court document said.
Lowe threatened Hutchinson with criminal prosecution when he couldn’t supply answers, but also promised not to refer the tax and wire fraud charges to the U.S. attorney’s office if Hutchinson cooperated.
“Coerced by the threat of prosecution and seduced by the promise of immunity,” Hutchinson told Lowe that he knew about “potential criminal activity by a state senator,” but that his source was privileged.
Lowe kept pushing, the filing said, and Hutchinson explained that his client, Cranford, had told of an attempt by then-state Sen. Jon Woods to extort money from Cranford. Lowe prodded Hutchinson to set up a meeting with
“The FBI used coercive interviews, a warrantless search of Jeremy’s stolen laptop; the destruction of the laptop and the exculpatory evidence it contained which Jeremy needs to defend himself and the blatant violation of attorney-client privilege.”
— Tim Hutchinson, father of Jeremy Hutchinson
Cranford and for Hutchinson to be present as Cranford’s attorney.
But another FBI agent, Special Agent Robert Cessario, confronted Cranford at a different time without Hutchinson present, according to Hutchinson’s filing. Hutchinson told Cranford by phone not to answer questions.
■ On Feb. 4, 2015, the FBI “allegedly closed” its investigation into Hutchinson, the filing said.
■ Between 2015 and 2017, the government is “presumed” to have destroyed its copies of the laptop and other devices provided by Hutchinson’s ex-girlfriend, the filing said.
■ On April 3, 2017, the government and FBI agent reopened the Hutchinson investigation, according to Thursday’s filing.
The document cites Fourth Amendment protections against “unreasonable searches and seizures” that “generally prohibit a warrantless entry and search of a person’s dwelling or property.”
In a statement, Hutchinson’s lawyers said Thursday that the government “should not be able to seize a wealth of personal files without consent, peek behind the curtain, use this wrongfully-obtained information to investigate, then destroy the original files and any record thereof.
“The motion alleges that the government’s blatant violations of Mr. Hutchinson’s Fourth Amendment rights, intentional destruction of records, inexplicable failures to follow protocol and duplicitous interrogation tactics require dismissal of the indictment,” Hutchinson’s lawyers said.
Another motion by Hutchinson’s attorneys Thursday asks to file under seal 14 exhibits in support of dismissing the charges. Eleven of the exhibits pertain to a protective order, the motion says. And each contains information that goes to “the substance of the government’s claims, information which has the potential to prejudice a jury pool.”
Since shortly after Hutchinson was indicted, family and friends have solicited contributions to a “Defend Jeremy” fund.
His court filings Thursday included requests from two more lawyers to join Little Rock defense attorney Tim Dudley on the former legislator’s legal team.
The two are Marc Mukasey of Mukasey Law in New York, whom news accounts say is a longtime associate of former New York Mayor Rudy Giuliani, and Nathan Muyskens of Greenberg Traurig LLP in Washington, D.C. Both are white-collar criminal defense specialists.