Case 2:10-cv-03452-HGB-ALC Document 51 Filed 02/16/11 Page 1 of 12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HEEBE ET AL. * CIVIL ACTION

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VERSUS * NO: 10-3452
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UNITED STATES OF AMERICA * SECTION: “C” (5)
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PLAINTIFFS’ MEMORANDUM REGARDING

WHAT SEIZED ITEMS SHOULD BE RETURNED

NOW INTO COURT through undersigned counsel come plaintiffs, Frederick R. Heebe,

A.J. Ward, Shadowlake Management, (“Shadowlake”), Willow, Inc. (“Willow”), Fred Heebe

Investments, Live Oak Homes Corporation (“Live Oak”), Heebe & Heebe, P.L.C. (“Heebe &

Heebe”), and River Birch, Inc. (“River Birch”), who respectfully submit the following

memorandum regarding what items seized by the Government should be returned.

INTRODUCTION

The Government clearly exceeded the scope of its warrant by searching every business

located at 2000 Belle Chasse Highway, rather than limiting its search to the offices of River

Birch, Inc. Based on undisputable evidence, the Government knew or should have known that,

in addition to River Birch, 2000 Belle Chasse Highway housed Shadowlake, Willow, Fred Heebe

Investments, Live Oak, Heebe & Heebe, and the law offices of Peter J. Butler, L.L.C.

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Accordingly, even before the search began, the Government should have taken steps to

ensure that only River Birch was searched. Indeed, in Maryland v. Garrison, the Supreme Court

held that investigators are obligated to discontinue a search when they discover that they may be

exceeding the scope of their warrant. 480 U.S. 79 (1987).

However, despite its clear knowledge that other businesses were located at 2000 Belle

Chasse Highway, the Government did not discontinue its search nor restrain its search in any

way. The Government searched every office in the building and seized documents from all but

one: the office of a single Shadowlake Management employee. 1 The Government also points

out that it did not seize materials from a hallway, a waiting room, a lunch room, and a conference

room, none of which contained any files or computers. 2 The Government cannot argue that it

exercised restraint or even attempted to stay within the scope of the warrant.

The Government also admits that it knew the law offices of Peter J. Butler, L.L.C. were

located in the building. Indeed, the Government concedes that the point of its “clean team” was

to avoid seizing information that “may relate to his [Mr. Butler’s] clients and be subject to

attorney-client privilege.” Rec. Doc. No. 48 at p. 8. Nevertheless, the Government fails to

explain how its warrant authorized the search of that law office.

Now, after the Court has ruled that the Government searched locations it did not have

authority to enter, the Government contends that it should only return items based on their

contents, rather than the location from which they were seized. Rec. Doc. No. 41 at p. 2. In

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Room 7 on the plaintiffs’ floor plan/Room B on the Government’s floor plan.
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The Government states that it labeled 19 areas on the third floor of 2000 Belle Chasse Highway as Rooms A
through S, but Room R is not visible on the Government’s floor plan. The Government also states that it only seized
documents from 12 of the 19 areas. However, the Government’s inventory reflects that it seized documents and/or
computers from 13 areas: rooms D, E, G, H, I, J, K, L, M, N, O, P, and Q. Finally, the Government contends that it
did not seize items from 7 areas. However, as far as the plaintiffs can tell, the Government did not seize items from
5 areas: rooms A, B, C, F, and S. However, only one of these rooms, Room B, is an office. Room A is a hallway,
C is a waiting room, F is a lunch room, and S is a conference room, none of which contain any files or computers.

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addition, the Government mistakenly believes that it is entitled to retain copies of materials of

non-River Birch companies that should never have been taken in the first place.

LAW AND ARGUMENT

1. The plaintiffs must be given the opportunity to review everything taken.

As is discussed below, the inventories submitted by the Government do not adequately

describe the documents seized to allow the plaintiffs to object to the retention of documents,

documents have been returned that were not listed on the inventories, and privileged materials

have neither been returned nor listed on the Government’s inventories. Accordingly, the

petitioners respectfully request that they be allowed to inspect all documents seized by the

Government, along with an index of the specific areas from which these materials were taken, to

determine whether all non-River Birch and privileged materials have been returned. The

plaintiffs suggest that it would streamline these proceedings if this inspection were permitted to

occur before the Court holds a hearing in this matter.

In addition, the Government has suggested that the explanations for its seizures are

“apparent after a reading of the search warrant affidavit.” Rec. Doc. No. 48 at p. 2. Since the

Government has elected to ask the Court to rely on the sealed affidavit, the plaintiffs respectfully

request that the affidavit be made available to all parties under seal as well.

2. The Government has not returned all seized property of tenants other than River
Birch, Inc.

In its December 21, 2010 Judgment, the Court ordered the Government to return “all

seized property of tenants other than River Birch, Inc.” Rec. Doc. No. 23 at p. 1. In its January

5, 2011 Notice of Compliance, the Government returned only one box, “Box 4,” which

contained “Privileged Items” and “Non-River Birch Materials.” Rec. Doc. No. 32 at p. 7. Box 4

contained some, but not all, materials seized from the law offices of Peter J. Butler, L.L.C. and a

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few privileged communications between Mr. Heebe and his counsel. Besides those items, the

Government has not returned a single piece of non-River Birch property.

In addition to the Butler law offices, the Government clearly searched and seized

materials from numerous other non-River Birch tenants, namely, Live Oak, Shadowlake,

Willow, and Heebe & Heebe. The Government has returned copies of some, but not all, items

taken from these companies, and has retained the originals. The Government should be ordered

to return everything seized from these non-River Birch companies.

Specifically, the Government should return the originals of all materials taken from the

following areas, as they have been labeled on the floor plan submitted by the plaintiffs:

Room 2 Shadowlake reception area

Room 4 Cubicle of Michelle Dufrene, Shadowlake Management

Room 5 Cubicle of Chris Bartholomew, Shadowlake Management

Room 6 Office of Jackie Bruchi, Shadowlake Management

Room 8 Office of Damaris Winters, Shadowlake Management

Rooms 9 & 10 Law offices of Peter J. Butler, L.L.C.

Room 15 Office of B. K. Sneed, Willow, Inc.

Room 19 Cubicle of Nita Bertucci, Willow, Inc.

Room 21 Cubicle of Michelle Morales, Live Oak Homes, Inc.

Room 22 Cubicle of Dominick Russo, Willow, Inc.

Room 23 Cubicle of Adrea Russo, Heebe & Heebe, PLC

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The Government has returned two boxes of copies of items taken from these areas, but it has

not returned everything. 3 However, the Government did not have the authority to enter these areas,

and it should return the originals of all items seized from these locations.

With respect to the inventory filed by the Government and listed on pages 2-4 of Rec. Doc.

No. 48, the plaintiffs specifically request the return of the following, all of which was seized from the

above-listed rooms:

Government Entry 1:

RNC General Contractors Records, including check stubs, one

blank check, bank statements, and Articles of Incorporation,
company phone list, Dell desktop PC, external hard-drive, 2
mirrored hard-drives. Seized from Area “H” (Rooms 4 and 5 on
the plaintiffs’ floor plan)

Government Entries 3 – 4:

Jefferson Parish Department of Environmental Affairs inter-office

memorandum Check stubs, voided checks from account of
Vandervort-Ward, 2 external hard-drives and power adaptors, Dell
laptop computer, 3 PC hard-drives, business records, phone logs,
POC printouts, Sprint invoices. Seized from Room “K” (Rooms
18, 19, 20, 21, 22, 23 on plaintiffs’ floor plan)

Government Entry 7:

Emails, zoning documents, Jefferson Parish planning documents,

Jefferson Parish correspondence, mirrored hard-drive, business
documents, Seized from Room “N” (Room 15 on plaintiffs’ floor
plan)

Government Entry 10:

PC hard-drive, 31 server back-up tapes, 4 zip drives, 5 CD-Roms,

2 DVDs, 4 mirrored servers. Seized from Room “D” (Room 8 on
plaintiffs’ floor plan)

Government Entry 11:

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It is difficult for the plaintiffs to determine from where the original items were seized, because the Government
does not reveal those locations.

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Mirrored PC hard-drive. Seized from Area “E” (Room 2 on

plaintiffs’ floor plan).

Government Entry 12:

Copies of RFPs from Jefferson Parish, documents regarding River

Birch, Inc., response to Jefferson Parish RFP, documents regarding
Old Gentilly Landfill, mirrored hard-drive. Seized from Room “I”
(Room 10 on plaintiffs’ floor plan)

Government Entry 13:

Waste Management and Jefferson Parish communications,

Jefferson Parish government documents, mirrored hard-drive,
River Birch, Inc. contracts and amendments. Derrick Shepherd
campaign finance reports and documents, Gentilly Landfill
documents, Jefferson Parish landfill documents, documents
regarding Tim Whitmer and Tim Coulon, documents regarding
Ethics Board investigation. Seized from Room “J” (Room 10 on
plaintiffs’ floor plan).

Government Entry 14:

3 Mirrored hard-drives. Seized from Rooms “G,” “K” and “E”

(Rooms 6, 21, and 2 on plaintiffs’ floor plan)

All of the above-listed materials belong to companies other than River Birch and must be

returned.

3. The Government has improperly retained copies of computers and documents

belonging to tenants other than River Birch, Inc.

Secondly, although the Government has returned several of the illegally seized hard

drives, it has improperly retained copies of these drives. In particular, the Government has

retained mirrored copies of the following:

• Maxtor hard drive, serial number Y23XP80E, seized from Room 22 and
belonging to Willow;

• Seagate hard drive 9RXEHJQC, seized from Room 2 and belonging to

Shadowlake;

• Seagate hard drive 5LS63ZLA, seized from Room 23 and belonging to Heebe &
Heebe;
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• Dell computer (vostro 2205), seized from Room 8 and belonging to Shadowlake;

• Seagate hard drive, serial number 5RXO3WT7, seized from Room 8 and
belonging to Shadowlake;

• Rosewill external data storage device, seized from Room 8 and belonging to
Shadowlake; and

• Cavalry external data storage device, seized from Room 21 and belonging to Live
Oak.

The Government has also retained the mirror images it seized of the computer servers

belonging to Shadowlake and Willow. The Government did not have the authority to take these

items, and it should not be able to retain copies of them.

4. The Government has returned documents that are not listed on any inventories

Further complicating matters is that the Government has returned documents that have

not been listed on any of the Government’s inventories or search receipts:

• a file related to the administration of the estate of Hugh Overstreet,

• invoices from Shadowlake Management to River Birch for employee medical,

dental, and life insurance, Rec. Doc. No. 32 at p. 5;

• real property tax bills, id. at p. 6;

• Shadowlake receipts for Polybutelene Replacement Schedule, id.; and

• correspondence from a local public relations company, id.

In light of this problem, it is difficult for the plaintiffs to determine what else may have been

seized that needs to be returned.

5. The Government has not returned non-River Birch property seized from shared
areas.

The Court also ordered that, in the case of property shared between River Birch, Inc. and

other tenants, the Government was to provide copies of all documents it intends to retain. Rec.

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Doc. No. 23 at 1. Room 12 (Mr. Heebe’s office), Room 13 (Mr. Ward’s office), Room 14 (Ms.

Forbes’ office), Room 16 (Mr. Fazzio’s office), and Room 17 (a common storage room),

contained items belonging to River Birch as well as other companies. The Government has not

returned any non-River Birch materials taken from these spaces, nor has it provided the plaintiffs

with copies of all materials it intends to retain.

6. The Government has not returned all privileged materials.

Finally, as the plaintiffs pointed out in their original reply memorandum, the Government

removed three boxes labeled “Attorney-Client Privileged” from the office of Mr. Heebe’s

assistant, Lea Forbes. Rec. Doc. No. 17 at p. 11, Ex. “Reply – F, G.” Among other things, these

boxes held red and yellow folders, placed side by side, containing petitioner Heebe’s confidential

communications to his attorneys about the events leading up to Jefferson Parish’s award of a 25-

year disposal contract to River Birch, Inc. Id. at Ex. “Reply – G, H.”

The Government has given conflicting explanations on its handling of these materials. In

its opposition to the plaintiffs’ Motion to Enforce Judgment filed Wednesday, January 25, 2011,

the Government stated that it reviewed the Attorney-Client Privileged boxes “on-scene by the

review team due to the labeling by the Petitioners” and only seized non-privileged documents.

Rec. Doc. No. 41 at p. 3 (emphasis added). However, in its memorandum filed Monday,

February 14, 2011, in response to the Court’s question about how the “clean team” interacted

with the investigatory team, the Government stated that “there was no consultation on-scene by

the ‘clean team’ of the investigatory team as to whether a document may be privileged.

However, documents found by the investigatory team as possible containing privileges material

were immediately given to the ‘clean team’ to be segregated for further review.” Rec. Doc. No.

48 at p. 10.

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In its opposition to the plaintiffs’ Motion to Enforce Judgment, the Government stated

that, “after the on-scene review, only items in those boxes which did not contain privileged

material were seized by agents. The government does not have folders of Heebe’s confidential

communications to his attorneys in those boxes, as alleged by the Petitioners.” Rec. Doc. No. 41

at 3. However, all three of those boxes – as well as all of their contents – were removed from

Ms. Forbes’ office and were missing after the Government’s search. Both video surveillance of

the search and the Government’s own photographs, taken at the beginning and at the end of the

search, reflect this removal. Exs. A, B, and C.

Finally, an identical copy of the document contained in the red folder was seized from the

Butler law offices by the clean team, which reviewed that document, determined it was

privileged, and returned it to the plaintiffs. Clearly, the document in the red folder should be

returned as privileged.

Furthermore, the Government did not follow the “clean team” procedure outlined in its

February 14 memorandum. The Government contends that

documents found by the investigatory team as possibly containing

privileged material were immediately given to the “clean team” to
be segregated for further review. Additionally, attorneys for the
plaintiffs were allowed access to the offices of River Birch while
the search was being executed and their movements were not
restricted within the office during the search. The attorneys
identified several documents they claimed contained privileged
material. These items were turned over to the “clean team” for a
determination if they did contain any privileged information.
Additionally, the attorney for Fred Heebe, William Gibbens,
contacted the United States Attorney’s Office to relay concerns
that privileged documents were being reviewed on-scene. These
concerns were immediately forwarded to the Supervisory Special
Agent on the scene. The agent was also reminded of the above
instructions.

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It is true that attorney William Gibbens contacted the United States Attorney’s Office to

relay concerns about the review of privileged documents. However, this contact was made after

attorney Kyle Schonekas pointed out to an investigatory agent that the agent was reading

privileged correspondence from Mr. Schonekas’ firm. The agent refused to stop reading that

document, and the attorneys for Mr. Heebe then called the United States Attorney’s Office to

notify them about this problem.

In light of this, as well as the handling of the boxes labeled attorney-client privileged, the

plaintiffs cannot be certain that all attorney-client privileged materials have been properly

reviewed or returned. Accordingly, the plaintiffs request that they have the opportunity to

review all retained documents for privilege.

Respectfully submitted,

/s/ William P. Gibbens /s/ Michael S. Walsh

Kyle D. Schonekas, 1187 Michael S. Walsh, 8500
William P. Gibbens, 27225 LEE & WALSH
SCHONEKAS, EVANS, MCGOEY 257 Maximilian Street
& MCEACHIN, L.L.C. Baton Rouge, LA 70802
Poydras Center Telephone: (225) 344-0474
650 Poydras Street, Suite 2150 Michael@leeandwalsh.com
New Orleans, Louisiana 70130
Telephone: (504) 680-6050 Attorney for Willow, Inc. and Heebe & Heebe,
kyle@semmlaw.com P.L.C.
billy@semmlaw.com

Attorneys for Frederick R. Heebe, Shadowlake

Management, L.L.C., Fred Heebe Investments,
and Live Oak Homes Corporation

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/s/ Robert N. Habans, Jr. /s/ Edward J. Castaing

Robert N. Habans, Jr., 06395
HABANS & CARRIERE
10843 N. Oak Hills Parkway
Baton Rouge, Louisiana 70810
Telephone: (225) 757-0225
bobhab@bellsouth.net
Edward J. Castaing
CRULL, CASTAING & LILLY
601 Poydras Street, Suite 2320
New Orleans, Louisiana 70130
Telephone: (504) 581-7700
ecastaing@cclhlaw.com

Attorney for A.J. Ward, Jr Attorney for River Birch, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2011, I electronically filed the foregoing pleading

with the Clerk of Court by using the CM/ECF system which will send a notice of electronic

filing to the following:

Gregory M. Kennedy, usalae.ecfcr@usdoj.gov

Salvador Perricone, usalae.ecfcr@usdoj.gov

/s/William P. Gibbens
WILLIAM P. GIBBENS

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