By Robert Burns (Special to LouisianaVoice)
Two months ago, Louisiana Voice reported on Livingston Parish DA Scott Perrilloux’s determination to prosecute Corey delaHoussaye. Perrilloux, working with the State Inspector General’s Office (IG), has charged delaHoussaye, an FBI informant responsible for FEMA denying $59 million to contractors for Livingston Parish’s hurricane Gustav cleanup due to rampant fraud, with falsifying public records. Specifically, Perrilloux and the IG allege delaHoussaye submitted paperwork for some time periods for which he claimed to be working but which the IG asserts he was at times golfing, visiting his doctor, working out, and tending to other personal matters.
Perrilloux failed to procure an indictment of delaHoussaye in December of 2013, but he nevertheless proceeded forward with a bill of information. Meanwhile, delaHoussaye filed federal and state civil suits against the parish as a result of incoming Parish President Layton Ricks stopping payment on a $379,000 check to delaHoussaye for his final invoice.
The civil matter ended Friday when delaHoussaye agreed to accept $325,000 as payment for his final invoice and to dismiss both his federal and state civil actions against the parish.
For now, the state criminal trial continues even though Judge Brenda Ricks ruled on February 23, 2015 that insufficient evidence exists to proceed with a trial. Mere minutes after Ricks’ ruling, Perrilloux angrily stated to reporters that he would appeal Ricks’ ruling, and he added, “Just because they wear a black robe doesn’t mean they know everything.” True to his word, Perrilloux recently filed an appeal with the First Circuit Court of Appeal seeking to overturn Ricks’ ruling and proceed with the criminal trial.
On Monday, April 20, 2015, delaHoussaye’s attorney, John McLindon, argued before Judge Ricks a motion to suppress and motion to quash the evidence gathered by the IG on multiple fronts. Judge Ricks’ ruling, expected sometime this week, may go a long way on clarifying just what authority and powers the IG has.
First, McLindon asserts that the IG is entitled to access the records only of a “covered agency.” Thus, IG access is limited to only executive branches of state government, of which Livingston Parish, with whom delaHoussaye executed his contract, clearly is not. In an obvious admission that Livingston Parish is not a covered agency, Greg Murphy, Assistant District Attorney, placed Ben Plaia, an attorney for the Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP), on the witness stand. Murphy utilized Plaia’s testimony to buttress Murphy’s argument that, because GOHSEP controls access to federal emergency funding and because those funds flow through it to the parish, delaHoussaye’s records were fair game by virtue of GOHSEP’s standing as a covered agency. Essentially, Murphy argued that, by virtue of funds flowing through GOHSEP, its own presumed covered agency status is imputed unto Livingston Parish.
McLindon attacked that assertion during cross examination by asking Plaia a series of questions. When asked if GOHSEP, delaHoussaye, or C-Del (delaHoussaye’s company) were covered agencies, Plaia responded, “I don’t know.” Obviously, if GOHSEP isn’t a covered agency, nothing can be imputed, and Plaia would not testify that GOSHEP is a covered agency. When asked if delaHoussaye or C-Del were contractors of a covered agency, Plaia again responded, “I don’t know.” Similarly, when asked if delaHoussaye or C-Del were subcontractors, grantees, or sub-grantees of a covered agency, Plaia again responded, “I don’t know.” When asked if GOHSEP had any contractors or subcontractors, Plaia indicated that it did not. When asked if it would be proper for GOHSEP to pay delaHoussaye or C-Del directly if invoices seeking payment were submitted directly to GOHSEP, Plaia responded, “No. In fact, I believe it would be improper for us to do so.”
Based on Plaia’s testimony, not only was there no foundation to establish that GOHSEP could impute any covered status unto Livingston Parish, but there was no foundation for establishing that GOHSEP is even a covered agency with anything to impute. Nevertheless, taking no chances, McLindon continued to attack the IG’s powers and authority even under the assumption that somehow covered status were deemed to exist and be imputable to Livingston Parish.
In doing so, McLindon is not the first attorney to fire a shot across the bow at the IG’s investigative powers and techniques. In December of 2013, during the trial of Murphy Painter, former Commissioner of the Alcohol and Tobacco Commission (ATC), both Mike Fawer and Al Robert, Jr., Painter’s defense attorneys, sharply criticized the IG in terms of overreach regarding search warrants and sloppy investigative techniques. Robert asserted to Federal Judge James Brady that the IG’s execution of the search warrant entailing Painter was both sloppy and that the agency acted well beyond the authority the judge granted. In perhaps the most stunning quote of the entire trial, Robert, outside the presence of the jury, stated to Judge Brady, “Your Honor, this is not the FBI! This is the OIG! These people do not know what they’re doing!”
Similarly, when Fawer had IG investigator Shane Evans on the witness stand, he asked him to confirm his notes documenting that ATC officer Brant Thompson indicated Painter was “out of control, manic-depressive, and selectively enforcing alcohol statutes.” Evans confirmed that Thompson made those statements to him. Fawer then asked Evans what investigative procedures he used to substantiate Thompson’s allegations against Painter. Evans stated that he’d performed no investigative procedures at all and instead that he “merely wrote down what Thompson said.” Fawer then inquired, “And based on your notations, my client (Painter) was summoned to the Governor’s Office later that evening, and he was fired by the Governor, wasn’t he?” Evans responded that it was his understanding that Painter had resigned, to which Fawer responded, “Resigned, fired, whatever the case. The bottom line is that very evening my client was out of a job all based on a few notes you wrote down with no attempt whatsoever to substantiate what you wrote, correct?” Evans, who has left the IG and now serves as an investigator for the EBRP Coroner’s Office, didn’t challenge Fawer’s assertion.
McLindon takes Fawer and Robert’s assertions a step further and indicates his firm belief that the IG has no search warrant authority at all. He argues that the Louisiana Legislature specifically granted the IG subpoena power but was silent on search warrant authority. He said that fact, combined with the fact that, for criminal matters, “statutes are to be given a narrow interpretation and any ambiguity resolved in favor of the accused,” (the Doctrine of Lenity) means that the IG has no search warrant authority. McLindon said that, prior to this case, nobody has ever challenged the IG on its search warrant authority, but he is formally doing so in this case and seeks for Ricks to make a formal ruling on whether they have such authority. Murphy countered that Ricks must believe the IG has the authority to execute search warrants since she signed one dated June 21, 2011. He then provided a copy to Judge Ricks, to which she responded, “You went way back to find that one, didn’t you?”
Next, even if covered status is somehow deemed to exist for Livingston Parish and search warrant authority is deemed by the court to be vested unto the IG, McLindon next argued that the IG failed to conform to the statutory requirement regarding an added step for subpoenas sought by the IG. Specifically, McLindon argued the statute says that the judge shall issue a written decision within 72 hours of the application for the subpoena. McLindon indicated that the IG and prosecutor have taken the position that the Motion for the Search Warrant is the decision, but McLindon counters that the motion is merely the application. Furthermore, he stressed heavily that the Legislature could have granted unfettered subpoena power to the IG in the same manner as that which exists for the Attorney General, but it intentionally meant to provide an added layer of review in the case of the IG. McLindon argued that the IG has been wrong to merely ignore that added layer as it has historically done. Again, McLindon argued nobody has challenged the IG on this requirement, but he’s doing so in this case.
McLindon concluded his arguments by indicating that failure to suppress the evidence obtained by the IG for the reasons he argues “gives agencies carte blanche to engage in fishing expeditions into the private, sensitive information of citizens.”
In yet another added challenge to IG authority on obtaining its evidence, McLindon cited a case, State v. Skinner, in which the Louisiana Supreme Court made clear the need for a warrant, and not a mere subpoena, to obtain an individual’s medical records. McLindon thus seeks for delaHoussaye’s medical records indicating he was visiting a physician during a timeframe that the IG alleges he reported working to also be suppressed. He seeks such suppression based upon the IG obtaining the records via subpoena rather than a warrant.
Readers may read McLindon’s full post-trial memo outlining his arguments.
Louisiana Voice has interviewed several attorneys about the wisdom of the Louisiana Legislature granting the IG law enforcement authority even with the provision of no arrest powers, silence on search warrant authority, and an added hurdle for subpoenas which McLindon asserts has historically been simply ignored by the IG. The consensus among the attorneys with whom Louisiana Voice has interviewed on the subject is that the Legislature made a mistake and that the IG is often abusing its power and, in at least some instances, acting in a reckless manner. Perhaps Judge Ricks’ ruling later this week will provide guidance as to whether she may be inclined to agree and, more specifically, to concur with arguments McLindon has advanced in this case.