Case 2:10-cv-03452-HGB-ALC Document 54 Filed 02/22/11 Page 1 of 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE SEARCH * CIVIL ACTION NO.: 10-3452

OF 2000 BELLE CHASSE HIGHWAY, *
GRETNA, LOUISIANA ON *
SEPTEMBER 23, 2010 * SECTION: “C” (5)
*
*
* JUDGE: BERRIGAN
*
* MAGISTRATE: CHASEZ
*************************************

MOTION TO FILE SUPPLEMENTAL MEMORANDUM

IN RESPONSE TO GOVERNMENT’S REPLY MEMORANDUM

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

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

Live Oak Homes Corporation (“Live Oak”), Heebe & Heebe, P.L.C., and River Birch, Inc.

(“River Birch”), who respectfully request permission to file the attached supplemental

memorandum in response to the Government’s reply memorandum filed on Friday, February 18,

2011. The Government raised a new argument in its reply memorandum, and the petitioners

believe that their supplemental memorandum will assist the Court in its determination of the

motion for return of property.

 Case 2:10-cv-03452-HGB-ALC Document 54 Filed 02/22/11 Page 2 of 3

WHEREFORE, Petitioners pray that this Motion be granted and that they be granted

leave to file the attached Supplemental Memorandum.

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

/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.

 Case 2:10-cv-03452-HGB-ALC Document 54 Filed 02/22/11 Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that on February 22, 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
 Case 2:10-cv-03452-HGB-ALC Document 54-1 Filed 02/22/11 Page 1 of 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN THE MATTER OF THE SEARCH * CIVIL ACTION NO.: 10-3452

OF 2000 BELLE CHASSE HIGHWAY, *
GRETNA, LOUISIANA ON *
SEPTEMBER 23, 2010 * SECTION: “C” (5)
*
*
* JUDGE: BERRIGAN
*
* MAGISTRATE: CHASEZ
*************************************

ORDER

Considering the foregoing Motion for Leave to File Supplemental Memorandum,

IT IS ORDERED THAT the Petitioners be and are hereby granted leave to file

their Supplemental Memorandum in support of their Motion for Return of Property.

New Orleans, Louisiana this _____ day of February, 2011.

________________________________
UNITED STATES DISTRICT JUDGE
 Case 2:10-cv-03452-HGB-ALC Document 54-2 Filed 02/22/11 Page 1 of 7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HEEBE ET AL. * CIVIL ACTION

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

SUPPLEMENTAL BRIEF IN OPPOSITION TO

GOVERNMENT’S MOTION FOR RECONSIDERATION

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

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

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

Birch, Inc. (“River Birch”) (collectively referred to herein as “Petitioners”), who respectfully

submit the following supplemental brief in opposition to the Government’s Motion for Rule

41(g) Evidentiary Hearing in Reconsideration of Order to Return Seized Documents.

INTRODUCTION

Over four months ago, Petitioners filed this action seeking the return of property illegally

seized by the Government during its search of 2000 Belle Chasse Highway, Gretna, Louisiana on

September 23, 2010. Rec. Doc. 1. For the past four months, the principal issue before this Court
 Case 2:10-cv-03452-HGB-ALC Document 54-2 Filed 02/22/11 Page 2 of 7

has been whether the Government’s search warrant for the “offices of River Birch Landfill 1 . . .

located at 2000 Belle Chasse Highway, Gretna, Louisiana, 70056,” 2 gave it unbounded authority

to search and seize documents from the premises of six other businesses operating at the 2000

Belle Chasse address, two of which were law firms. Indeed, the Government’s initial response to

Petitioners’ motion to return property was that it had the authority to search the offices of River

Birch and that “if any other businesses were located with the office space of the third floor, they

were permissibly searched” because the Government allegedly could not distinguish between

those businesses and River Birch. Rec. Doc. 14 at 2, id. at 3 (arguing that “there was no separate

delineation of any separate businesses within the building”). That position has been repeated by

the Government throughout the litigation. See, e.g., Rec. Doc. 31 at 8 (contending that FBI

Special Agent Malcolm J. Bezet observed no “independent identifying information that would

have alerted agents to other businesses housed within the common office space”).

Now, less than a week before this Court’s evidentiary hearing on the Government’s

motion for reconsideration, the Government reverses course and argues that its search of all the

businesses located at 2000 Belle Chasse was not unreasonable because its “search was not

limited only to the offices of River Birch.” Rec. Doc. 53 at 2. Instead, the Government claims

that Attachment B to the search warrant, which references documents and other items related to

certain individuals, a few LLC entities, the Gentilly landfill, and a Jefferson Parish contract for

landfill services involving River Birch, means the warrant contemplated the search of all seven

businesses located at 2000 Belle Chasse even though six of those businesses are not landfill-

related and the Government’s search warrant only identified the offices of “River Birch Landfill”

1
Although the warrant authorized the search of “the offices of River Birch Landfill,” River Birch Landfill is not an
entity. River Birch, Inc., a Louisiana corporation, owns and operates a landfill. The landfill’s offices are located on
Highway 90 in Waggaman, Louisiana, not on Belle Chasse Highway.
2
Rec. Doc. No. 3-3, Ex. “A.”
 Case 2:10-cv-03452-HGB-ALC Document 54-2 Filed 02/22/11 Page 3 of 7

as the premises to be searched. In essence, the Government is asking this Court to ignore the

plain language of the warrant and its attachment as well as established constitutional law – and

validate the Government’s general, and clearly illegal, search and seizure. Moreover, the

Government is presenting this argument for the very first time in a reply brief in support of its

motion for reconsideration. As the Government’s argument is both wrong and untimely, it

should be rejected.

LAW AND ARGUMENT

It is well-settled that a motion for reconsideration “is not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered or raised before the entry of

judgment.” Templet v. HydroChem, Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). The

Government’s new found argument that its search was not limited to the offices of River Birch

because the warrant somehow supported the search of all seven businesses operating at 2000

Belle Chasse Highway could have been offered at any time during the past four months of

litigation. This argument, however, was never presented until the Government’s reply brief in

support of its motion for reconsideration. Accordingly, this argument is untimely raised and

should be rejected. Le Clerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005) (“A motion for

reconsideration may not be used to . . . introduce new arguments.”).

But even were this Court inclined to consider the Government’s late and last ditch

argument that the scope of the warrant contemplated the search of businesses other than River

Birch, both the facts and the law make clear that the argument cannot save the Government’s

case. In order to comport with the Fourth Amendment, a warrant must particularly describe “the

place to be searched, and the persons or things to be seized.” United States v. Haydel, 649 F.2d

1152, 1156 (5th Cir. 1981) (quoting U.S. Const. amend. IV). If the description on the face of the

3
 Case 2:10-cv-03452-HGB-ALC Document 54-2 Filed 02/22/11 Page 4 of 7

warrant does not “fairly direct attention to the place actually searched,” the search of that place

would be illegal. Id. at 1157. Courts may look beyond the warrant to the supporting affidavit for

clarification only in those cases where the warrant itself is ambiguous. Id.; see also United

States v. Shugart, 117 F.3d 838, 845 (5th Cir. 1997) (noting that affidavit in support of a search

warrant may be used to cure deficiencies in particularity) (internal citations and quotations

omitted).

Here, the Government fails to contend that the warrant is ambiguous or demonstrate how

the affidavit in support of the warrant could provide any clarity. These failures are unsurprising

given that the warrant itself unambiguously identifies the place to be searched as 2000 Belle

Chasse Highway, Gretna, Louisiana 70056 as “further described in Attachment A.” Rec. Doc. 3-

1 at 1. Attachment A specifically states the “offices of River Birch Landfill” are located at 2000

Belle Chasse Highway, and that these offices are located in a “three-story beige brick building

with a sign in front that states River Birch Inc. and Willow Homes.” Rec. Doc. 3-3 at 2. There

is no further description of the place to be searched. There is no need for additional description,

however, as the Government’s warrant makes plain that the place to be searched are the “offices

of River Birch.” The reference to “Willow Homes” in Attachment A is made in connection to

the description of a sign in front of the building in which the offices of River Birch are alleged to

be located. Rec. Doc. 3-3 at 2. Thus, the Government’s contention that the warrant itself

indicates the search was not “limited only to the offices of River Birch” is meritless.

That Attachment B identifies a few individuals and LLCs as well as information related

to the Gentilly Landfill and River Birch’s dealings with Jefferson Parish is no indication that the

warrant contemplated a broad based search of every tenant occupying space at 2000 Belle

Chasse. As an initial matter, none of the six other tenants of 2000 Belle Chasse are identified

4
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anywhere in Attachment B. Furthermore, Attachment B is explicitly identified as a list of the

“Items to be Searched and Seized” and not the places or premises to be searched. Rec. Doc. 3-3

at 3.

Moreover, the Government cannot dispute that it was on notice that Willow occupied

space in 2000 Belle Chasse given that the warrant included Willow’s name in the description of

the sign in front of the building. Rec. Doc. 3-3 at 2. Yet nowhere in the warrant or its

attachments is there any indication that Willow was to be searched or its documents seized. Id.

In fact, the Government has never presented any reason why premises other than River Birch

were searched beyond its incredible contention that it saw nothing during either its 2008

interview visit or its 11 hour search in September 2010 that would have put it on notice that other

businesses were located at 2000 Belle Chasse. Rec. Doc. 53-2 at 3, 4. Indeed, the Government

has never argued that it made any attempt to verify its apparent belief that the building at 2000

Belle Chasse housed only River Birch prior to obtaining the search warrant. This is in marked

contrast to the police officers in Maryland v. Garrison, who at least attempted to verify their

belief that only one apartment was located on the third floor of 2036 Park Avenue by visiting the

premises, checking with the electric company, and comparing the address against police

department records. 480 U.S. 79, 86 (1987). In the absence of such efforts, and in the face of

the unambiguous search warrant, the Government’s search and seizure here were neither

constitutional nor reasonable.

The desperation of the Government’s position is perhaps best highlighted by its argument

that counsel for some of the Petitioners failed to argue that the search and seizure exceeded the

boundaries of the warrant during its execution. Although counsel for petitioner Heebe were

present at the search and allowed to look at the warrant a few times during the search, counsel

5
 Case 2:10-cv-03452-HGB-ALC Document 54-2 Filed 02/22/11 Page 6 of 7

were not given a copy of the search warrant until after the search and seizure were completed

and did not discover the deficiency in the warrant until after the damage had been done.

Accordingly, even if there were a requirement for a contemporaneous objection, counsel for

petitioner Heebe were not in the position to make such an objection at the time of the

constitutional violation. In addition, counsel for the other petitioners were not present at all.

CONCLUSION

For the foregoing reasons, and the reasons argued in Petitioners’ principal brief in

opposition (Rec. Doc. 42), the Petitioners respectfully request that the Court uphold its previous

determination that the Government’s search exceeded the scope of the warrant.

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

6
 Case 2:10-cv-03452-HGB-ALC Document 54-2 Filed 02/22/11 Page 7 of 7

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

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

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

CERTIFICATE OF SERVICE

I hereby certify that on February 22, 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