Reports sought of investigation into scandal by prosecutors
Henry Mouton, the last remaining defendant to await sentencing in an aborted federal probe of the River Birch landfill, fought in court on Wednesday for federal records to show that a scandal-tainted U.S. Attorney’s Office violated his rights while pressing for his guilty plea.
Mouton pleaded guilty in 2011 to a conspiracy count for taking bribes from a New Orleans landfill owner who goes unnamed in court documents, but which documents make clear was River Birch owner Fred Heebe or his business partner, Jim Ward.
Mouton then went on to help authorities build a case against others involved in the alleged scheme, only to see prosecutors drop charges in March against River Birch executive Dominick Fazzio and his brother-in-law, Mark Titus.
At the same time, federal prosecutors notified Heebe and Ward that the government would not pursue charges against them. The Justice Department’s Public Integrity Section cited “evidentiary concerns” and the “interest of justice.”
Heebe was never indicted, but a heavily funded counter-attack brought revelations of intemperate online postings by two top federal prosecutors, Sal Perricone and Jan Mann. The ensuing scandal led both Perricone and Mann to resign, prompted then-U.S. Attorney Jim Letten to step down in December, and continues to dog the office in the form of legal challenges in high-profile cases.
Mouton’s attorney, Mary Olive Pierson, asked U.S. District Judge Martin Feldman to order government officials to turn over reports spurred by the scandal, to see if they will show whether his prosecution and guilty plea were “incurably infected” by government abuse.
Among the documents Pierson wants is a report by special prosecutor John Horn, who was called in by the Justice Department to answer a demand by another federal judge, Kurt Engelhardt, to get to the bottom of the online postings and potential criminal wrongdoing by Perricone, Mann and perhaps others.
“I think that he’s been denied due process, and it’s so infected the case that he should be allowed to withdraw his plea,” Pierson told the judge. The problem, she argued, is that Mouton needs the documents to show it.
Feldman sounded dubious, both on the bench and in a 23-page ruling issued later Wednesday.
Feldman declined, at least for now, to order the documents turned over. He repeatedly returned to Mouton’s guilty plea and the factual basis behind it, in which he admitted to numerous, specific payments from “co-conspirator A,” adding up to $463,000 in “illegal bribes and payoffs,” particularly while Mouton sat on the state Wildlife and Fisheries Commission.
Former Jefferson Parish President Aaron Broussard tried and failed with a similar tactic last year before a different judge, first in a bid to get Letten’s office removed from the case based in part on Perricone’s online barbs, and then in pressing for a hearing into prosecutorial misconduct after Broussard pleaded guilty to corruption in September. Questions about the scandal also have colored appeals in the case of police officers convicted in the Danziger Bridge shootings.
While skeptical of Mouton’s legal argument, Feldman also voiced concerns with the government’s antics and the dropped charges against Fazzio and Titus, along with abruptly and publicly ending the River Birch probe.
“If it was in the interest of justice for a very high-profile investigation to be terminated, is it in the interest of justice for Mr. Mouton to find out why?” Feldman asked. “He was cooperating. He was giving you all the evidence there was. That was part of his deal. What’s fair about that?”
Legally, the decision by the U.S. Attorney’s Office to drop the investigation adds a strange element to the case, Feldman said, adding that in 30 years he’d never seen federal prosecutors publicly announce that they’d scrapped a case.
“You could almost get metaphysical about it,” he said, “and say (Mouton)’s taking bribes ... from someone who doesn’t exist.”
Last year, following the Perricone flap, Mouton’s case was transferred to a Justice Department section in Washington D.C. Assistant U.S. Attorney Brian Lichter argued that Mouton had failed to reach a high legal bar for prosecution that would be tainted enough to allow the withdrawal of a guilty plea.
Along with Horn’s report on the online postings, Mouton’s attorneys want to see the results of a probe by the Department of Justice’s Office of Professional Responsibility, as well as a review that Pierson said she had heard was conducted by the Department of Justice’s Office of Inspector General over the FBI’s investigation into River Birch, among other documents.
Feldman said he would postpone Mouton’s June 19 sentencing date pending more written arguments from both sides over the question of whether, assuming prosecutorial misconduct, Mouton’s due process rights would have been violated, invalidating his guilty plea. The judge rejected Mouton’s other arguments — including a claim that his actions were legal, though he may have thought they were not.
“My concern is whether or not, under these very bizarre fact circumstances, his guilty plea is flawed,” Feldman said. “There has been too much, just too much scent of government abuse in this neighborhood lately.”
Mouton declined to comment after the hearing, quickly leaving the court.