US prosecutors drop charges in River Birch fraud case

MICHAEL KUNZELMAN

Associated Press

NEW ORLEANS (AP) - The U.S. Justice Department on Friday asked a judge to dismiss its fraud charges against a Louisiana landfill executive and his brother-in-law, ending a case marred by anonymous online comments posted by federal prosecutors.

In a one-page court filing, prosecutors from the department's public integrity section say their request to dismiss the indictment of River Birch landfill executive Dominick Fazzio and Mark Titus is based on "evidentiary concerns and in the interests of justice."

The New Orleans-based U.S. attorney's office recused itself from the case last year after the resignation of veteran prosecutor Sal Perricone, who admitted he had been anonymously posting comments on a newspaper's website about judges, politicians and cases, including a broader probe involving the River Birch landfill.

River Birch co-owner Fred Heebe's lawyers, who unmasked Perricone as the author of the posts, said Justice Department officials informed them Friday that they won't be pursuing any charges against their client. The Justice Department would not immediately confirm that.

In a separate court filing Friday, federal prosecutors said they would return property that FBI agents seized from River Birch's Gretna offices in September 2010.

The commenting scandal led to former U.S. Attorney Jim Letten's resignation in December. Letten's longtime top deputy, Jan Mann, was demoted and retired after she also acknowledged she posted anonymous comments on nola.com, The Times-Picayune's companion website.

U.S. District Judge Helen "Ginger" Berrigan didn't immediately rule on prosecutors' request to dismiss the indictment "with prejudice," meaning they couldn't refile the charges.

"After a thorough and careful review of the matter, the department has concluded that it is in the interest of justice to dismiss the charges against Dominick Fazzio and Mark Titus based solely on the facts and evidence as they exist at this time," the Justice Department said in a statement.

Fazzio and Titus were charged with conspiring to embezzle nearly $1 million from a New Orleans-based construction management company where Titus worked. Fazzio, a tax preparer who serves as chief financial officer of the River Birch landfill, also was charged with plotting to illegally reduce the amount of federal taxes paid by the owner of an oilfield services company by more than $3.5 million.

Titus already is serving a five-year prison sentence from his guilty plea to related charges that he embezzled from his former employer, Garner Services LLC. He is appealing his sentence and a judge's decision not to let him withdraw his guilty plea.

Titus' attorney, James Ardoin, said prosecutors informed him and Fazzio's lawyer, Arthur Lemann, of their decision during a conference call Friday morning.

"We were in total shock," Ardoin said. "We had no clue it was coming."

The attorneys said prosecutors didn't elaborate on their reasons for dropping the case.

"The case was a mess," Lemann said. "There's no doubt in my mind there's more skeletons in the closet of the government."

Lemann said the decision shocked his client, too.

"He couldn't believe it. His last two years have been spent in hell," he added.

Letten, who was the nation's longest-serving U.S. Attorney before he resigned, has said didn't know about Perricone and Mann's anonymous posts until their online activities were revealed in court filings by Heebe's lawyers. Although his landfill business was under investigation, Heebe hasn't been charged with wrongdoing.

Heebe was once the front-runner for the post that Letten wound up filling. Heebe had been nominated by then-President George W. Bush for U.S. attorney in 2001 but withdrew amid allegations he had abused an ex-girlfriend and his ex-wife. He denied the allegations.

Henry Mouton, a former Louisiana wildlife official, pleaded guilty in 2011 to charges he took more than $463,000 in payoffs from a landfill company owner's businesses as a reward for work in trying to keep a rival landfill closed. The company owner wasn't identified, but Mouton's indictment said he touted River Birch.

Mouton, who agreed to cooperate with federal investigators, is scheduled to be sentenced on June 19. His attorney, Mary Olive Pierson, said she hoped prosecutors' decision in the case against Fazzio and Titus would have a "positive impact" for her client. "Something good ought to happen to Henry Mouton as a result of this," she said.

Former U.S. Attorney Harry Rosenberg, one of Letten's predecessors, said it's extremely rare for federal prosecutors to voluntarily drop a case this way.

"It probably gets five stars for being unorthodox," said Rosenberg, now a defense attorney.

Rosenberg has represented former New Orleans Mayor Ray Nagin, who pleaded not guilty last month to bribery charges. Nagin also was a target of Perricone's anonymous comments, which could be fodder for Nagin's defense.

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