Post-hearing briefs filed in Heebe-River Birch v USA

No time at the moment to do more than get these up for the SLABBED-nation to read.  Have it at! The USA’s brief follows and the Heebe-Ward-River Birch brief is below the jump.

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Gone fishing – River Birch Plaintiffs’ opposition to Court’s ex parte, in camera review of search warrant affidavit

Catch of the day from yesterday’s docket entries in Heebe-Ward-River Birch  v USA  was the Plaintiffs’ opposition brief filed after the evidentiary hearing.  As noted in the Minute Entry for the hearing, the Government asked the Court to conduct an ex parte, in camera review of the sealed affidavit to the search warrant.

In their opposition, the Plaintiffs contend:

…the Government has not offered any legal support for its request that the search warrant application affidavit be considered by the Court while simultaneously withheld from Plaintiffs. The Government’s only justification is that disclosing it could compromise its ongoing investigation. The Government cannot have it both ways. If the Government wants to use this search warrant application affidavit as evidence in this civil case, then the affidavit must be disclosed absent some exception to the main rule that ex parte determinations on the merits are not permitted in civil cases. Eisenberg, 654 F.2d at 1112. Here, however, the Government has failed to provide any authority in support of its ex parte submission or even argue that there is an applicable exception.

A plain English reading of the Opposition suggests the Plaintiffs’ argument makes the Government’s case – particularly when the judge has the civil rights focus of Federal District Judge Ginger Berrigan. My not-a-lawyer guess is the sealed affidavit names the informant who tippped the Government to the “spoilage” of evidence taking place on the third floor of the River Birch office building – making the Plaintiffs’ Opposition a fishing expedition. Continue reading “Gone fishing – River Birch Plaintiffs’ opposition to Court’s ex parte, in camera review of search warrant affidavit”

USA can’t sell tickets – River Birch ordered to turn over surveillance video (way to go, Judge Berrigan!)

The only shorter Order would have been “do it” – and somehow I think that might be how this translates:

IT IS ORDERED that by 10:00 a.m. on February 23, 2011, Plaintiffs’ shall provide the Government a copy of the surveillance video that was submitted to the Court on February 22, 2011.

The order was issued yesterday and entered on the docket today. Yesterday, Judge Berrigan also granted the Heebe-Ward-River Birch Plaintiffs’ motion to submit the supplemental reply brief . That Order, too, was entered on the docket today.

The legal argument of the Heebe-Ward-River Birch plaintiffs (see Mirror, Mirror Camera, camera on the wall) was dwarfed by fact and common sense.

According to the Plaintiffs, the Government posed a “new found argument” when it pointed out the broad scope of the search.

Judge Berrigan, however, is not “Dopey” and she knows the Government didn’t claim the warrant “contemplated the search of all seven businesses located at 2000 Belle Chasse…” as the plaintiffs’ brief alleged.

Likewise, she knows what the Government did claim; i.e., “the agents obtained a search warrant for the premises of 2000 Belle Chasse Highway, Gretna, Louisiana, 70056′” and “further described the property as ‘The offices of River Birch Landfill'”.

Mirror, Mirror Camera, camera on the wall – USA wants to see the video

Three new docket entries have followed since SLABBED reported Mirror, mirror on the wall server, was it one enterprise office after all?  With a hearing on the USA’s Motion for Reconsideration set for tomorrow, there’s no time to compose commentary – the USA’s motion and supporting memorandum are below in Scribd format.  Also below is the Heebe-River Birch Plaintiffs’ supplemental opposition to the USA’s motion for reconsideration and, for your convenience in comparing the two positions, a repeat of the Government’s response.

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Mirror, mirror on the wall server, was it one enterprise office after all?

I started this post before a “glitch” in my computer knocked me off line – but I was thinking at the time about how much more mirrored servers can do that just backup files. Those thoughts, in turn, led me to think about the third floor of the River Birch building and the various entities claiming separate offices there – which reminded me of “association-in-fact enterprises” – something I learned in researching Shows v State Farm, the Katrina RICO case:

Association-in-fact enterprises are probably the most useful and abundant forms of RICO enterprises, but they are also the most difficult to grasp on an analytical level.

Such a group need not have a hierarchical structure or a chain of command; decisions may be made on an ad hoc basis and by any number of methods-by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.

After two days off-line, I might have let this post linger in “drafts” had it not been for the United States’ Motion for Leave to File Reply Memorandum to Petitioners’ Opposition to Government’s Motion for Reconsideration – a pleading  filed today in Heebe-Ward-River Birch v USA. (full motion in Scribd format below the jump)

The petitioners contend that the search warrant signed by the Magistrate in this case “clearly limited the Government’s search to the offices of River Birch.” Rec. Doc. 42, p. 2. However, the search was not limited only to the offices of River Birch. The search warrant and its attachments authorized the search of 2000 Belle Chasse Highway, which contains the office of River Birch Landfill. Rec. Doc. 3-3, pp. 1-2. Attachment B to the search warrant clearly contemplated that documents related to the business and business practices that are found at 2000 Belle Chasse Highway are within the scope of the search warrant and therefore were permissibly seized. Rec. Doc. 3-3, p. 3-4. “The scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” Maryland v. Garrison, 480 U.S. 79 (1987). (emphasis added) Continue reading “Mirror, mirror on the wall server, was it one enterprise office after all?”

Tick-tock it’s almost 12 o’clock

“The thirtieth edition of the U.S. Government Style Manual (2008) sections 9.54 and 12.9b recommends the use of “12 a.m.” for midnight and “12 p.m.” for noon”…soooooo

After reviewing the Government’s inventory Plaintiffs shall submit a memorandum regarding what seized items they believe should be returned pursuant to this Court’s previous Order by Wednesday, February 16, 2011 by 12:00 p.m. (Order, Federal District Judge Ginger Berrigan)

Roll the dice for another round of CLUE – the River Birch version

Although some are still playing CLUE – the River Birch Version,  we need to roll the dice and start another round to make room for all the new clues filed today.

Let’s start with why the Government brought a “clean team” along when the FBI searched the third floor offices of River Birch: (Government’s Response)

A “clean team” or privilege review team was assigned to the execution of a search warrant in this case due to the investigators’ knowledge that Peter Butler, Sr., a licensed attorney, worked within River Birch’s offices at 2000 Belle Chasse Highway. Investigators were concerned about the possible seizure of documents that could be subject to a privilege between an attorney and client.

Which leads to the one additional document filed today, the Plaintiffs’ Memorandum Regarding File Cabinets and File Folders – AKA SCRABBLE!

…The tan filing cabinet in the file room contains River Birch, Inc.’s old files on numerous matters, including reports on environmental regulation and compliance, various law suits, information about vendors and customers, and agreements with environmental consultants. The files in this cabinet date from approximately 1993 to approximately 2007.

The plaintiffs are unsure whether the Government seized any documents from this cabinet. However, everything currently in this tan filing cabinet was not seized by the Government. Any documents returned by the Government after the search are in the possession of undersigned counsel and have not been re-filed. (emphasis added)

The boxes of files copied and returned are full of clues – too bad River Birch didn’t peek as a good many in Box 2 likely came from the tan cabinet holding files from 1993-2007 – perhaps, even this one, at least in part:

NC General Contractors cancelled checks and bank statements 12/30/07 – 5/2010. Continue reading “Roll the dice for another round of CLUE – the River Birch version”

Judge Berrigan wasn’t playing games – but Heebe played River Birch SCRABBLE and that’s a CLUE!

Chances of the Jefferson Parish Fire Department writing up River Birch for what appears to be a blocked exit are slim to none – so what possible reason could Heebe-Ward-River Birch have for the manual submission of a three-page floor plan as an Exhibit to the Plaintiff’s Memorandum(below in scribd format)?

However, here’s a so-so but readable version of the hand-drawn single page layout attached as an Exhibit to the Government’s Memorandum (below in scribd format) – the colored areas indicate the location of various items seized. Talk about a CLUE – note the number of locations where the government seized “mirrored hard drives“. Every file written on a mirrored hard drive is automatically written to another.

Take the Heebe-River Birch SCRABBLE and what you’ve learned from the various tours and identify who had what seized by the government – both documents are below the jump.  I’ll be back shortly with more from today’s filings; so, stand by: Continue reading “Judge Berrigan wasn’t playing games – but Heebe played River Birch SCRABBLE and that’s a CLUE!”

If “the best place to hide a needle is in a haystack of needles” then…

The best place to hide a file is in a pile of files!

As you may recall, Judge Berrigan’s Order required the Government to “provide a detailed inventory of what it seized from the premises of 2000 Belle Chasse Highway”:

That inventory shall indicate what was seized, from where it was seized, and on what basis the Government concluded that the seized material was related to River Birch, Inc.

SLABBED has hosted several photo-tours of the third floor of the River Birch office building.  Consequently, I’ve become familiar enough with the Government’s photographs to wonder about the way the Government’s inventory will word the descriptions of the  “what…where… and on what basis” required by the Order.

Let’s suppose for a moment that something was seized from the location pictured below. Do you think Judge Ginger had something like this in mind  for the description of “where” — seized from pile of shit under the empty box atop large tan file cabinet? Did she consider the possibility that a description of “on what basis” might read — Agent A said with so much shit piled up everywhere we needed to take the whole pile back to see if what he’d found was evidence purged from those boxes marked “FRH Purged Files” that were headed for “Storage”.

If you need a little Friday night fun, try your hand at rewording my description or Continue reading “If “the best place to hide a needle is in a haystack of needles” then…”

“CLUE” – the River Birch version

It was NAAS, and not Colonel Mustard, who launched the River Birch version of CLUE® with this question posted to  Judge Berrigan orders River Birch to file a floor plan with the Court:

Which “team” is it that reviews seized documents and records to cull out the truly privileged, confidential or unrelated documents not covered by the warrant?

Pull a card from the Government’  Opposition to Return of Seized Property and Incorporated Memorandum (scribd format below) and the game begins with this “clue”:

Special Agent Bezet and other agents made every lawful effort to separate what was believed to be attorney-client privileged material for a late inspection by a taint team. As noted in Petitioner’s Memorandum, a “clean team” was on scene to collect items from Peter Butler, Sr.’s office at 2000 Belle Chasse Hwy. 

The Government rolled the dice and submitted clues about “who done it” in  Attachment B to the Warrant authorizing the search of the River Birch office building AKA Exhibit H in the Opposition (text-only Exhibits incorporated with brief in scribd format below): Continue reading ““CLUE” – the River Birch version”