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Heebe-River Birch v USA: Plaintiffs' Memorandum Regarding What Seized Items Should Be Returned

Heebe-River Birch v USA: Plaintiffs' Memorandum Regarding What Seized Items Should Be Returned

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Published by: nowdoucit on Feb 16, 2011
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1UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANAHEEBE ET AL. * CIVIL ACTION*VERSUS * NO: 10-3452*UNITED STATES OF AMERICA * SECTION: “C” (5)**************************************
PLAINTIFFS’ MEMORANDUM REGARDINGWHAT 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 HeebeInvestments, Live Oak Homes Corporation (“Live Oak”), Heebe & Heebe, P.L.C. (“Heebe &Heebe”), and River Birch, Inc. (“River Birch”), who respectfully submit the followingmemorandum regarding what items seized by the Government should be returned.
INTRODUCTION
The Government clearly exceeded the scope of its warrant by searching every businesslocated at 2000 Belle Chasse Highway, rather than limiting its search to the offices of RiverBirch, 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 HeebeInvestments, Live Oak, Heebe & Heebe, and the law offices of Peter J. Butler, L.L.C.
Case 2:10-cv-03452-HGB-ALC Document 51 Filed 02/16/11 Page 1 of 12
 
2Accordingly, even before the search began, the Government should have taken steps toensure that only River Birch was searched. Indeed, in
 Maryland v. Garrison
, the Supreme Courtheld that investigators are obligated to discontinue a search when they discover that they may beexceeding the scope of their warrant. 480 U.S. 79 (1987).However, despite its clear knowledge that other businesses were located at 2000 BelleChasse Highway, the Government did not discontinue its search nor restrain its search in anyway. The Government searched every office in the building and seized documents from all butone: the office of a single Shadowlake Management employee.
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The Government also pointsout that it did not seize materials from a hallway, a waiting room, a lunch room, and a conferenceroom, none of which contained any files or computers.
2
The Government also admits that it knew the law offices of Peter J. Butler, L.L.C. werelocated in the building. Indeed, the Government concedes that the point of its “clean team” wasto avoid seizing information that “may relate to his [Mr. Butler’s] clients and be subject toattorney-client privilege.” Rec. Doc. No. 48 at p. 8. Nevertheless, the Government fails toexplain how its warrant authorized the search of that law office.The Government cannot argue that itexercised restraint or even attempted to stay within the scope of the warrant.Now, after the Court has ruled that the Government searched locations it did not haveauthority to enter, the Government contends that it should only return items based on theircontents, 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 Athrough S, but Room R is not visible on the Government’s floor plan. The Government also states that it only seizeddocuments from 12 of the 19 areas. However, the Government’s inventory reflects that it seized documents and/orcomputers from 13 areas: rooms D, E, G, H, I, J, K, L, M, N, O, P, and Q. Finally, the Government contends that itdid not seize items from 7 areas. However, as far as the plaintiffs can tell, the Government did not seize items from5 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.
Case 2:10-cv-03452-HGB-ALC Document 51 Filed 02/16/11 Page 2 of 12
 
3addition, 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 ARGUMENT1. The plaintiffs must be given the opportunity to review everything taken.
As is discussed below, the inventories submitted by the Government do not adequatelydescribe 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 materialshave neither been returned nor listed on the Government’s inventories. Accordingly, thepetitioners respectfully request that they be allowed to inspect all documents seized by theGovernment, along with an index of the specific areas from which these materials were taken, todetermine whether all non-River Birch and privileged materials have been returned. Theplaintiffs suggest that it would streamline these proceedings if this inspection were permitted tooccur 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 theGovernment has elected to ask the Court to rely on the sealed affidavit, the plaintiffs respectfullyrequest 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 RiverBirch, Inc.
In its December 21, 2010 Judgment, the Court ordered the Government to return “allseized property of tenants other than River Birch, Inc.” Rec. Doc. No. 23 at p. 1. In its January5, 2011 Notice of Compliance, the Government returned only one box, “Box 4,” whichcontained “Privileged Items” and “Non-River Birch Materials.” Rec. Doc. No. 32 at p. 7. Box 4contained some, but not all, materials seized from the law offices of Peter J. Butler, L.L.C. and a
Case 2:10-cv-03452-HGB-ALC Document 51 Filed 02/16/11 Page 3 of 12

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