Recommendation and Order — United States v. Hutchins (Dkt. 36, W.D.N.Y.)

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A report, recommendation and order by United States Magistrate Judge Jeremiah J. McCarthy in United States v. John L. Hutchins, Case No. 1:22-cr-42-JLS-JJM, in the U.S. District Court for the Western District of New York, filed April 14, 2023 as Document 36. Hutchins is charged in an eleven-count indictment with crimes related to the Paycheck Protection Program, and moved to dismiss Count 11, which alleges that he falsely denied applying for EIDL or PPP loans, and to suppress statements. The magistrate judge grants the government's cross-motion and recommends that Hutchins' motions be denied.

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Case 1:22-cr-00042-JLS-JJM Document 36 Filed 04/14/23 Page 1 of 10




UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK


    UNITED STATES OF AMERICA,
                                                            REPORT,
    v.                                                      RECOMMENDATION
                                                            AND ORDER
    JOHN L. HUTCHINS,
                                                            Case No. 1:22-cr-42-JLS-JJM
                                Defendant.


                Defendant John L. Hutchins is charged in an eleven-count indictment [1] 1 with

various crimes related to the Paycheck Protection Program (“PPP”). Before the court are

Hutchins’ motion to dismiss Count 11 of the indictment (Ginter declaration [23], §I) and to

suppress statements (id., §II), along with the government’s cross-motion for reciprocal

discovery. See Government’s Response [25] at 19-20. 2 Having considered the parties’

submissions [23, 25, 26, 35] and heard oral argument on March 29, 2023 [33], for the following

reasons the government’s cross-motion is granted, and I recommend that Hutchins’ motions be

denied.



                                       DISCUSSION

A.        Sufficiency of Count 11

                “The standard for the sufficiency of an indictment is not demanding . . . and

requires little more than that the indictment track the language of the statute charged and state the



1
        Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2
       All other portions of Hutchins’ pretrial motion [23] were deemed resolved. See March 29, 2023
Text Order [34].

       Case 1:22-cr-00042-JLS-JJM Document 36 Filed 04/14/23 Page 2 of 10




time and place (in approximate terms) of the alleged crime.” United States v. Willis, 14 F.4th

170, 187, n. 7 (2d Cir. 2021), cert. denied, 142 S. Ct. 2660 (2022); Fed. R. Crim. P. (“Rule”)

7(c)(1).

                Count 11 of the indictment charges Hutchins with violating 18 U.S.C.

§1001(a)(2), which provides that “whoever, in any matter within the jurisdiction of the

executive, legislative, or judicial branch of the Government of the United States, knowingly and

willfully . . . makes any materially false, fictitious, or fraudulent statement or representation . . .

shall be fined under this title [and/or] imprisoned not more than 5 years”.

                In moving to dismiss that Count, Hutchins argues that “[n]owhere in the

indictment is it alleged that Mr. Hutchins acted willfully” (Ginter declaration [23], ¶6), ignoring

the fact that the indictment specifically alleges that he “did knowingly and willfully make a

materially false, fictitious, and fraudulent statement and representation to a Special Agent of the

Federal Bureau of Investigation and to an Investigator of the United States Attorney’s Office,

that is, the defendant falsely denied applying for, or authorizing anyone to apply for, any EIDL

or PPP loans, with the possible exception of one PPP loan for Rapids Theater”. [1], ¶40

(emphasis added).

                Hutchins next argues that “to violate §1001, a person must know that it is

unlawful to make such a false statement”, and that “the indictment fails to allege that Mr.

Hutchins acted willfully with knowledge that his conduct is unlawful”. Ginter declaration [23],

¶¶5, 7. However, knowledge of unlawfulness is inherent in the definition of “willful”. See Bryan

v. United States, 524 U.S. 184, 191-92, 196 (1998) (“in order to establish a ‘willful’ violation of

a statute, the Government must prove that the defendant acted with knowledge that his conduct

was unlawful . . . . [K]nowledge that the conduct is unlawful is all that is required”). “While



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Bryan involved a federal firearms conviction, this court has recognized that its definition of

willfulness is generally applicable.” United States v. Kukushkin, 61 F.4th 327, 332 (2d Cir.

2023).

               If a word or phrase used in a statute is a term of art, its “component parts . . . need

not be alleged to render [the] indictment sufficient”. United States v. Wicks, 187 F.3d 426, 428

(4th Cir. 1999). 18 U.S.C. §1001(a)(2) prohibits “knowingly and willfully” making a materially

false statement, and the words “‘willfully and knowingly’ . . . are terms of art used in statutes too

numerous to recite. Inasmuch as these terms do not change from statute to statute or indictment

to indictment, they are definite enough in legal meaning to give defendant notice of the charge”.

United States v. Carrier, 672 F.2d 300, 303 (2d Cir. 1982). Therefore, the indictment need not

separately allege that Hutchins knew that his false statements were unlawful.

               Hutchins’ third argument is that willfulness requires that he have been “advised

by law enforcement that a false statement [is a] federal crime”. Ginter declaration [23], ¶8. He

contends that “Due Process requires that [he] be provided notice of the fact that it is a crime to

make a false statement under §1001”, and that “First Amendment protection of speech cannot be

removed based on the status of the person spoken to without notice that such activity is

criminal”. Hutchins’ Reply [26] at 2.

               I disagree. Willfulness only requires knowledge that the conduct at issue is

unlawful, and “unlawful acts . . . need not be ‘criminal’ or ‘illegal’”. Value Trailer Corp. v.

Auto-Reconstrutora Do Barreiro, LDA, 1989 WL 46694, *2 (N.D. Ohio 1989); Weis Markets,

Inc. v. United Food and Commercial Workers Union, Local. 400, AFL-CIO, CLC, 583 A.2d

1092, 1095 (Md. App. 1991) (same); Black’s Law Dictionary (11th ed. 2019) (defining




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“unlawful” as “[n]ot authorized by law; illegal” or “[i]nvolving moral turpitude”, and “moral

turpitude” as “[c]onduct that is contrary to justice, honesty, or morality”).

                 “[A] statute’s willfulness requirement does not require the government to prove

specific intent [to commit a crime] unless the statute is highly specialized and complex and

implicates seemingly innocent conduct.” United States v. Kukushkin, 61 F.4th 327, 333 (2d Cir.

2023). 18 U.S.C. §1001(a)(2) is neither highly specialized nor complex, and does not “implicate

seemingly innocent conduct” - for to sustain a conviction under §1001(a)(2), “the government is

required to show that the misrepresentation was not made innocently or inadvertently”. United

States v. Curran, 20 F.3d 560, 567 (3d Cir. 1994). Therefore, “nothing in the language or

structure of 18 U.S.C. §1001 suggests that ‘willfully’ requires proof that a defendant knew his

conduct was a crime”. United States v. Whab, 355 F.3d 155, 161 (2d Cir. 2004). 3

                 Although the Second Circuit in Whab cautioned that it “need not decide the issue,

a matter of first impression in this Circuit” (id. at 162), its subsequent decision in United States

v. Carrasquillo, 239 F. App’x 634 (2d Cir. 2007) treats the question as resolved. “Willfulness

relates to the making of the false statement, not to knowledge that the statement would violate a

law . . . . [N]othing in the language or structure of 18 U.S.C. §1001 suggests that ‘willfully’

requires proof that a defendant knew his conduct was a crime”. Id. at 636.

                 Hutchins argues that Carrasquillo “is a Summary Order, which is not binding on

this Court”. Hutchins’ Letter Brief [35] at 1. However, “since summary orders are meant to be

used only when the law on a given topic is settled, [they] presumably provide particularly good




3
        Nor can “free speech considerations” add to Rule 7(c)(1)’s requirement that the indictment
contain “a plain, concise, and definite written statement of the essential facts constituting the offense
charged”. Carrier, 672 F.2d at 303.


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evidence of what legal principles the Second Circuit considers as established at any given point

in time.” Bell v. Luna, 856 F. Supp. 2d 388, 401, n. 3 (D. Conn. 2012). 4

                In suggesting that the Due Process clause and the First Amendment require notice

that giving a false statement is a crime, Hutchins argues that “all other false statement crimes[,]

such as perjury, require the due process notice to be alleged”. Hutchins’ Letter Brief [35] at 1.

Not true. “Although section 1621 [18 U.S.C. §1621, criminalizing perjury] uses the term

‘willfully’ as the scienter element of the offense, willfulness has been interpreted to mean only

that the defendant knew that the offending statement was false, and does not require . . .

knowledge that defendant’s conduct violated the law.” 2 Sand, et al, Modern Federal Jury

Instructions (Criminal), §48.01.

                Finally, Hutchins argues that the indictment must allege that he knew that his

false statement was being made to government agents. However, since this argument was raised

only at oral argument rather than in his motion, I will not consider it. See Standard General L.P.

v. Travelers Indemnity Co. of Connecticut, 261 F. Supp. 3d 502, 511 (S.D.N.Y. 2017) (“[t]his

Court need not consider an argument raised for the first time at oral argument”). For these

reasons, I recommend that Hutchins’ request for dismissal of Count 11 be denied.




4
         See Wang v. Hearst Corp., 877 F.3d 69, 76, n. 2 (2d Cir. 2017) (citing a “summary order
reflecting settled law”); United States v. Siraj, 533 F.3d 99, 100 (2d Cir. 2008) (“[b]ecause most of [the]
arguments are defeated by well settled law, we consider them in an accompanying summary order”).
United States v. Triumph Capital Group, Inc., 487 F.3d 124, 127 (2d Cir. 2007) (“these challenges are
governed by settled law, and we consider and reject [them] in a summary order accompanying this
decision”).


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B.     Suppression of Statements

               A court is “not required as a matter of law to hold an evidentiary hearing if . . .

[the] moving papers d[o] not state sufficient facts which, if proven, would . . . require[ ] the

granting of the relief requested”. United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir. 1969).

See also United States v. Merced, 2021 WL 5647827, *15 (S.D.N.Y. 2021) (“a defendant

seeking a hearing bears the burden of demonstrating . . . that there are material facts in dispute,

which, if proven through a hearing, would require the granting of relief”).

               To establish his entitlement to a suppression hearing, Hutchins submitted an

initial Affidavit in connection with his motion [24], as well as a belated supplemental Affidavit

[26-1] detailing the events of November 2, 2020. He alleges that on or about November 2, 2020,

he was initially contacted by an FBI agent, who “refused to meet” him at the location of his

choosing, and instead “directed the date, time, and location” of their meeting, which occurred on

November 2, 2020 at the Tim Hortons restaurant in Niagara Falls. Hutchins’ Affidavit [24], ¶3;

Hutchins’ supplemental Affidavit [26-1], ¶4. He was met at the restaurant by members of the

FBI and United States Attorney’s Office, and they sat at a small inside table, with one member of

law enforcement seated “directly in front” of him and one to his “side”. Id., ¶¶5, 6.

               The law enforcement personnel present provided him with their identifications,

which prompted him to become concerned that he was “the subject of some sort of criminal

investigation”, but he was “assured that [he] was not the subject of any investigation”. Hutchins’

Affidavit [24], ¶5; Hutchins’ supplemental Affidavit [26-1], ¶7. He was not given his Miranda

warnings, informed that he was free to leave, or told that he did not have to answer their

questions. Hutchins’ Affidavit [24], ¶7; Hutchins’ supplemental Affidavit [26-1], ¶¶8, 10. Based

on his “conversations with law enforcement both telephonically and in person”, he states that “I



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felt that I had no option but to answer the question[s] posed to me and that I was not free to

leave”. Hutchins’ Affidavit [24], ¶6; Hutchins’ supplemental Affidavit [26-1], ¶9. At oral

argument, Hutchins’ attorney confirmed that he was seeking suppression based on the absence of

Miranda warnings.

               “A suspect is entitled to Miranda warnings only if he or she is interrogated while

‘in custody.’” Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998). The government argues

that Hutchins’ motion to suppress his November 20, 2020 statements should be denied without

an evidentiary hearing because he fails to establish that he was in custody at the time of this

questioning. See Government’s Response [25] at 5-7. I agree.

               While Hutchins may not have felt that he was free to leave under the

circumstances (Hutchins’ Affidavit [24], ¶6; Hutchins’ supplemental Affidavit [26-1], ¶9), “[t]he

free-to-leave inquiry” is not determinative. United States v. Newton, 369 F.3d 659, 670 (2d Cir.

2004). The critical issue for determining if person was in custody for Miranda purposes is

“whether a reasonable person would have understood his freedom of action to have been

curtailed to a degree associated with formal arrest”. United States v. Jabar, 19 F.4th 66, 83 (2d

Cir. 2021), cert. denied, 142 S.Ct. 1396 (2022). See also United States v. Hall, 421 F.2d 540, 545

(2d Cir. 1969) (“in the absence of actual arrest something must be said or done by the authorities,

either in their manner of approach or in the tone or extent of their questioning, which indicates

that they would not have heeded a request to depart or to allow the suspect to do so”); Berkemer

v. McCarty, 468 U.S. 420, 440 (1984) (“the safeguards prescribed by Miranda become

applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal

arrest”). “Relevant considerations include: (1) the interrogation’s duration; (2) its location (e.g.,

at the suspect’s home, in public, in a police station, or at the border); (3) whether the suspect



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volunteered for the interview; (4) whether the officers used restraints; (5) whether weapons were

present and especially whether they were drawn; and (6) whether officers told the suspect he was

free to leave or under suspicion.” Jabar, 19 F.4th at 83.

               The circumstances described by Hutchins were not equivalent to the hallmarks of

formal arrest. He does not claim that the duration of the interrogation was unduly long, that

restraints were used, that he was threatened or intimidated in any way, or that firearms were

visible or drawn. See United States v. Efthimiatos, 799 F. App’x 75, 76–77 (2d Cir. 2020)

(Summary Order) (“[a] reasonable person in Efthimiatos’s position would have felt free to leave,

and the questioning did not bear the major hallmarks of formal arrest. At no time during the

questioning did the agents tell him he was under arrest or otherwise not free to leave. They were

dressed in civilian clothing, did not display their weapons, and maintained a conversational tone

throughout. Efthimiatos was not physically restrained or touched at all. He moved freely to and

from the vehicle in which some of the questioning occurred”). While Hutchins was not

expressly told that he was free to leave, he was “assured” that he was “not the subject of any

investigation”, an equally strong indication that he was not in custody. Hutchins’ Affidavit [24],

¶5; Hutchins’ supplemental Affidavit [26-1], ¶7.

               At oral argument, Hutchins’ attorney relied heavily on the fact that Hutchins was

directed by the FBI as to where and when to meet. However, the meeting occurred at a public

restaurant, and Hutchins was told that he was not the subject of any investigation. Hutchins also

points to the fact that he was seated at a small table with law enforcement agents seated directly

across and beside him, but there is no indication that this prevented him from leaving. Compare

with United States v. Abbas, 418 F. Supp. 2d 280, 286 (W.D.N.Y. 2006) (finding that the

defendant’s freedom of movement was restricted akin to a formal arrest where the agent “stood



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and blocked the door to the outside of the store”). Nor is there any “suggestion that, at any point,

[he] attempted to terminate the interview or was prevented from doing so”. Jabar, 19 F.4th at 84.

Considering all of the circumstances, no reasonable person in Hutchins’ position would conclude

that he was in custody. Therefore, I recommend that the motion be denied without a hearing.


C.     The Government’s Cross-Motion for Reciprocal Discovery

               The government cross-moves for the production of reciprocal discovery pursuant

to Rule 16(b). Government’s Response [25] at 19. “Rule 16 . . . imposes reciprocal discovery

obligations on defendants.” United States v. Smith, 985 F.Supp.2d 506, 522 (S.D.N.Y. 2013).

Hutchins has not opposed this request. Therefore, it is granted.

               Pursuant to Federal Rule of Evidence 807, the government also asks that Hutchins

provide “advance disclosure of any statement(s) [he] proposes to utilize at . . . trial”.

Government’s Response [25] at 19. Since Hutchins has also not opposed this request, it is

granted.

                                          CONCLUSION

               For these reasons, the government’s cross-motion for reciprocal discovery

(government’s Response [25] at 19-20) is granted, and I recommend that Hutchins’ pretrial

motions to dismiss Count 11 of the indictment (Ginter Declaration [23], §I), and to suppress

statements (id. at §II) be denied.

               Unless otherwise ordered by District Judge John L. Sinatra, Jr. any objections to

this Report, Recommendation and Order must be filed with the clerk of this court by April 28,

2023. Any requests for extension of this deadline must be made to Judge Sinatra. A party who

“fails to object timely . . . waives any right to further judicial review of [this] decision”. Wesolek

v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).


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               Moreover, the district judge will ordinarily refuse to consider de novo arguments,

case law and/or evidentiary material which could have been, but were not, presented to the

magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal

Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).

               The parties are reminded that, pursuant to Rule 59(c)(2) of this Court’s Local

Rules of Criminal Procedure, “[w]ritten objections . . . shall specifically identify the portions of

the proposed findings and recommendations to which objection is made and the basis for each

objection, and shall be supported by legal authority”, and pursuant to Local Rule 59(c)(3), the

objections must include “a written statement either certifying that the objections do not raise new

legal/factual arguments, or identifying the new arguments and explaining why they were not

raised to the Magistrate Judge”. Failure to comply with these provisions may result in the

district judge’s refusal to consider the objection.

SO ORDERED.

Dated: April 14, 2023

                                                        /s/Jeremiah J. McCarthy
                                                        JEREMIAH J. MCCARTHY
                                                        United States Magistrate Judge




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