Case 2:10-cv-03452-HGB-ALC Document 48 Filed 02/14/11 Page 1 of 12

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HEEBE, ET AL. * CIVIL ACTION NO: 10-3452

v. * SECTION “C” (5)

UNITED STATES OF AMERICA *

* * *

GOVERNMENT’S RESPONSE AND MEMORANDUM

TO COURT ORDER OF FEBRUARY 9, 2011

NOW INTO COURT comes the United States of America, appearing through the

undersigned Assistant United States Attorney, who respectfully submits the following response to this

Court’s Order dated February 9, 2011.

This Court ordered the government to provide a floor plan of the third floor of 2000 Belle

Chasse Highway. Record Document 45, p. 1. The floor plan is attached to this response as Exhibit

1. The government was further ordered to provide to the Court a detailed inventory of what it seized

from the premises of 2000 Belle Chasse Highway including what was seized, from where it was

seized and on what basis the government concluded it was related to River Birch, Inc.; indicate which

items have already been returned to plaintiffs; provide the Court with a status update of the review

of allegedly privileged documents seized from the third floor; and, the government shall submit a

memorandum explaining why a “clean team” was present during the initial search and what
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instruction was given to the “clean team,” and its interaction with the regular investigators. Record

Document 45, pp. 1-2.

Detailed Inventory of Items Seized

The government submits the following list of items seized, from where it was seized, and the

basis for which the investigators concluded it was related to River Birch, Inc. The investigators

labeled each individual room or office space by letter to designate from where items were seized. The

investigators labeled nineteen (19) separate areas. Restrooms, a small office space adjoining a large

office, and a supply closet were not designated by letter. Of the nineteen (19) total areas of the third

floor of 2000 Belle Chasse Highway, documents were only seized from seven (7) areas. The

investigators concluded that any documents or items found in those areas were not within the scope

of the search warrant and therefore were not seized. Additionally, many other documents within the

other twelve (12) areas were not seized because investigators again concluded that such items were

not germane to the search warrant. The items seized, from where it was seized and its relationship

River Birch, Inc.1 are:

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.” Records and documents of business and
business practices of River Birch, Inc.

1
The government will give an explanation of an item’s relationship to River Birch, Inc.
However, the government is not providing, nor has this Court ordered the government to provide, an
explanation of the basis for which investigators determined that the items were related to the
investigation of possible violations of federal law. To do so would compromise the continuing, active
investigation. If such an explanation is desired by the Court as to any item seized and not apparent after
a reading of the search warrant affidavit, the government requests to meet with the Court, ex parte, to
explain the item’s significance to the investigation.

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2. Business records of River Birch, Inc., a signed contract of River Birch,

data inventory, and an option to purchase land by River Birch, Inc., 12
Hi-8 video tapes, 1 VHS video tape, a Sony Hi-8 video camera,
electronic storage media, DVDs, a computer hard-drive, three mirrored
hard-drives. Seized from Room “P.” Business Records and items
containing the business records of River Birch, Inc and evidence of
other possible violations of state and/or federal law.

3. Draft Request for Proposal (RFP) from Jefferson Parish, 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. Seized from Room “K.” Documents and records of the
business and business practices of River Birch, Inc.

4. A folder labeled “Dutchie,” business records, phone logs, POC

printouts, Sprint invoices. Seized from Area “K.” Business records
of River Birch, Inc.

5. Jefferson Parish landfill documents and Jefferson Parish landfill

records, Ethics Board subpoena responses, Quickbook software,
Gentilly landfill documents, Jefferson Parish landfill emails and RFP,
documents and correspondence regarding debris and landfill. Seized
from Room “L.” Documents related to the business and business
practice of River Birch, Inc.

6. Environmental Services, Inc. invoices, financial statements, payments

to contractors, memo regarding continued employment, mirrored hard-
drive. Seized from Room “Q.” Documents related to the business of
River Birch, Inc.

7. Emails, zoning documents, Jefferson Parish planning documents,

Jefferson Parish correspondence, mirrored hard-drive, business
documents, Seized from Room “N.” Documents and correspondence
related to the business of River Birch, Inc.

8. Documents regarding political contributions, documents regarding the

Gentilly landfill, a study regarding the Gentilly landfill, contribution
requests from Aaron Broussard, a page of handwritten notes, a fax
from the Jefferson Parish Attorney, a letter from the Louisiana
Department of Justice, copies of contracts and other correspondence
with Jefferson Parish, insurance documents, contracts and proposals,
miscellaneous records of River Birch, Inc., audio and video tapes, Dell

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laptop computer, power adaptor, external harddrive, 3 mirrored hard-

drives , Seized from Room “O.” Documents regarding the business
and business practices of River Birch, Inc.

9. Jefferson Parish RFP River Birch response, campaign contribution

records, emails, RFP with corrections, “Henry Mouton” folder of
documents, seven (7) CDs, eleven (11) floppy computer discs,
HPDAT tape data cartridge, River Birch and Jefferson Parish landfill
disposal contract, River Birch RFF0176 contract with Jefferson Parish,
two mirrored hard-drives. Seized from Room “M.” Documents and
items regarding the business and business practices of River Birch,
Inc.

10. PC hard-drive, 31 server back-up tapes, 4 zip drives, 5 CD-Roms, 2

DVDs, 4 mirrored servers. Seized from Room “D.” , Items containing
documents related to the business and business practices of River
Birch, Inc.

11. Mirrored PC hard-drive. Seized from Area “E.” Item containing

documents related to the business and business practices of River
Birch, Inc.

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.”
Documents and items regarding the business and business practices of
River Birch, Inc.

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.” Documents and items regarding the business and business
practices of River Birch, Inc.

14. 3 Mirrored hard-drives. Seized from Rooms “G,” “K” and “E.”
Items containing the business records of River Birch, Inc.

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Inventory of Copied and Returned Items

Box 1

1. Julie Quinn Campaign Contributions (list of donors) and expenditure

Reports 1/1/04 12/31/08.

2. Time Picayune Article dated 11/27/07 regarding Morial investigation;

various Louisiana Secretary of State records for numerous LLCs.

3. Phone log for Tim Whitmer, Tom Wilkinson, and Tim Coulon,
12/30/08-11/3/09 with attached Sprint statements for Shadow Lake
Management.

4. Invoices from Shadowlake Management Co., Inc. to River Birch for

employee medical, dental and life insurance, 2006 - 2009.

5. Contract between Jefferson Parish and River Birch, Inc. for disposal
services; cover letter from Taylor Porter to Louis Gruntz, Jr.

6. Various emails and letters between Michael Woodard, Fred Heebe,

Lea Forbes regarding Gentilly Landfill.

7. Email from Tim Whitmer to Fred Heebe dated 12/11/08 regarding

changing of insurance agent of record.

8. Various invoices/shared documents for River Birch and Network

Environmental Services.

9. State of Louisiana DEQ - Amended Declaration of Emergency and

Administrative Order dated 11/2/2005.

Box 2

1. Various records for NC General Contractors, Inc., Shadowlake Villas,

including Polybutylene Replacement Schedule, repair receipts.

2. Fax between Willow and Paul Miers regarding dimensions for River
Birch Landfill expansion with accompanying Jefferson Parish Council
Resolutions.

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3. Page of handwritten notes in chronological order regarding Jefferson

Parish RFP.

4. Various pages regarding Landrieu Public Relations May 2001, fliers

and donors.

5. NC General Contractors cancelled checks and bank statements

12/30/07 5/2010.

6. Capital One bank statements for Fred Heebe; CITI statements for Fred
Heebe and Lea Forbes; real property tax bills.

7. Various documents - Jefferson Parish Landfill Site Plan, contract with

Jefferson Parish Landfill and John Sexton Sand and Gravel
Corporation; documents for Paul Miers Engineering and River Birch
regarding Highway 90 and C and D Landfill.

8. NC General Contractors check register.

Box 3

1. Maxtor hard drive, serial number Y23XP8OE.

2. Seagate hard drive, serial number 9VY56ER3.

3. Seagate hard drive, serial number 9RXEHJQC.

4. Seagate hard drive, serial number 5LS63ZLA.

5. Dell computer (vostro 2205).

6. Seagate hard drive, serial number 5RXO3WT7.

7. Rosewill external data storage device.

8. Cavalry external data storage device.

9. Fantom drives external data storage device.

10. Dell Vostro 1510.

11. My passport essential ultra-portable hard drive.

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12. Dell Vostro 1510.

13. Maxtor external data storage device serial number L59C45ZH.

Inventory of Returned Items, Copies not Retained by the Government

These are items determined to be either potentially privileged or unrelated to the scope of

the search warrant. Copies of these items were made for retention by the Court in accordance with

Rule 41(g) of the Federal Rules of Criminal Procedure. The government did not retain an inventory

of these items.

Box 1

1. Privileged Items.

2. Non-River Birch Materials.

Update of Review of Potentially Privileged Documents

The investigators in this case continue to review documents that have been seized in this case.2

To date, the investigators have recently found one potentially privileged document, based upon the

title caption, during the review. This document was immediately set aside for review by a member

of the “clean team” and for review by the “clean team” AUSA. No other such documents have been

identified thusfar.

The investigators and AUSAs assigned to the investigation continue to be mindful of the

possible discovery of potentially privileged documents. The government recognizes its continuing

obligation to return all privileged documents to the Petitioners and will continue to utilize a review

2
While investigators demonstrated complete fealty to the attorney-client privilege, and
still do, they are mindful that some documents could contain evidence which would qualify for
the Crime-Fraud exception to the privilege.

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team if any such documents become known to investigators as the review of the mirrored hard-drives

and servers continues. Additionally, the government recognizes its ongoing obligation to return to

the Petitioners, without copying, any documents that are found to be unrelated to the mandates of the

search warrant, as ordered by this Court, should any be made known to the government through its

continuing review or made know by other parties.

Reasons for “Clean Team,” Instructions, and Interaction

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.

However, agents were also concerned that documents relevant to the scope of the search warrant may

have gone undetected if a thorough and comprehensive search was not done of the entire area of River

Birch’s office.

The “clean” and investigatory teams were given the following instructions regarding the

seizure and review of privileged documents and interaction between the two:

a. Peter Butler, Sr. is an attorney who is licensed to practice in the State of

Louisiana. Butler maintains an office within RBL's administrative office.

Consequently, some of the information seized may relate to his clients and be

subject to attorney-client privilege. Nevertheless, every effort will be made

not to gain access to privileged information. Therefore, the investigators will

utilize other Agents, FBI employees, and an Assistant United States Attorney,

as a "Privilege Team," to view any potentially privileged material.

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b. A "Privilege Team" of FBI Agents and other employees will be used to search

the premises and non-privileged materials responsive to the warrant will be

provided to the Assistant U.S. Attorneys assigned to the "Prosecution Team."

Any suspected privileged materials will be collected by the "Privilege Team."

A custodian will be designated to segregate alleged privileged materials, a

computer forensic analyst will extract information from the computer storage

systems and digital media, and an Assistant United States Attorney assigned

to the "Privilege Team" will review the extracted information to determine

whether such materials are, in fact, privileged. Members of the "Privilege

Team" will not be involved in the investigation and will be instructed not to

discuss the case or materials with any members of the "Prosecution Team."

c. If any materials appear to be so privileged, such materials will be segregated

by the forensic analyst and will be designated as such. The privileged

materials will not be revealed in any way to members of the "Prosecution

Team," including the prosecutor, case agent, or any other material witnesses.

The privileged materials will be returned to Peter Butler, Sr.

d. The "Privilege Team" will forward to the "Prosecution Team" any and all

materials that are not privileged materials.

e. If the "Privilege Team" disagrees on whether or not certain materials are

privileged, such materials will be submitted to a United States District Court

Judge for a ruling as to whether the privilege applies and/or whether the

materials fall within any exception to the attorney-client privilege;

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f. The arguably privileged materials retained by the "Privilege Team" will not be

shown to the "Prosecution Team" unless and until a Judge determines that the

materials are not privileged or fall within any exception to the attorney-client

privilege;

g. Computer files will be initially examined by the "Privilege Team" to

determine relevance and privileged status in accordance with the above-

described procedure.

The above procedures were followed by the investigators on scene. The “clean team” and

investigatory team were both briefed as to the salient facts of the investigation so that a determination

could be made on-scene as to whether documents found were relevant to scope of the search warrant.

However, 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. 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

contained 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

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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.

Respectfully submitted,

JIM LETTEN
UNITED STATES ATTORNEY

s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
Louisiana Bar Roll Number 20896
United States Attorney’s Office/EDLA
500 Poydras Street, Room B210
New Orleans, Louisiana 70130
Telephone: (504) 680-3102
Email: Greg.Kennedy@usdoj.gov

s/Salvador R. Perricone
SALVADOR R. PERRICONE
Assistant United States Attorney
Louisiana Bar Roll Number 10515
500 Poydras Street, Second Floor
New Orleans, Louisiana 70130
Telephone: (504) 680-3026
Email: Salvador.Perricone@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on February 14, 2011, I electronically filed the foregoing with the
Clerk of Court by using the CM/ECF system which will send a notice of electronic
filing to all counsel of record.

s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney

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Exhibit 1