U.S. Department of Justice

Transcription

1 Case 2:11-cr HH-FHS Document 204 Filed 12/03/12 Page 1 of 2 U.S. Department of Justice Eastern District oflouisiana U. S. Attorney's Office Jim Lellen Assislanl Unifed Slates AIIorney 650 Poydras Sfreel, Suile I600 New Orleans. LA Telephone (504) Fax (504) November 20, BY U.S. Mail Honorable Hayden Head Senior U.S. District Court Judge N. Shoreline Blvd. Corpus Christi, Texas Your Honor: Re: United States v. Aaron Broussard, et al., No. 2:ll-CR-299 "HH" (E.D. La. 2011) On May 10, 2012, defendant Aaron F. Broussard ("Broussard") filed a Motion and Memorandum to Recuse the U.S. Attorney's Office from the above-styled case. See Rec. Doc. No. 82. Defendant Thomas G. Wilkinson ("Wilkinson"), on May 23,201 2, similarly filed a Motion and Memorandum to Recuse the U.S. Attorney's Office from this matter. See Rec. Doc. No. 90. One of the bases for the defendants' motions was the extrajudicial comments made by a former Assistant U.S. Attorney, Salvador Perricone ("Perricone") regarding the defendants. On June 1,201 2, the U.S. Attorney's Office filed its omnibus Response in Opposition to the defendants' Motions to Recuse. See Rec. Doc. No. 94. In the Response, we argued that Perricone's comments did not warrant recusal because of the limited role he played in this case. See id. at 10. In any event, Perricone's resignation as an AUSA removed any alleged conflict, another argument raised by our office in response to the defendant's motions. See id. On June 27, 2012, this Court issued a two-page order, requesting that the United States submit the details of its investigation involving, among other things, former AUSA Perricone's comments. See Rec. Doc. No In response, on July 2,2012, AUSA Jan Mann, the former First Assistant U.S. Attorney, sent a letter under seal to the Court describing the government's investigation into AUSA Perricone's comments. A copy of that letter is attached hereto as Exhibit A.' In the letter, AUSA Mann described AUSA Perricone's confession to being the anonymous poster of the extrajudicial comments, as well as his subsequent resignation. It also described AUSA Perricone's minimal involvement in this matter. 'The letter also described the government's investigation into alleged "leaks" of grand jury information, a separate argument raised by the defendants here for recusal.

2 Case 2:11-cr HH-FHS Document 204 Filed 12/03/12 Page 2 of 2 In response to the letter, on July 26,2012, this Court issued a five-page order denying the defendants' motions to recuse. See Rec. Doc. No On page 2 of this order, the Court noted Perricone7s limited role in the case and subsequent resignation. See id. at 2. Additionally, on page 2 of this order, the Court stated, "[olther Assistant United States Attorneys have not made such similar public comments as Mr. Perricone's or otherwise indicated personal bias in this case." See id. Last week, as a result of a civil lawsuit filed by an individual named Frederick Heebe, our office learned that Assistant U.S. Attorney Jan Mann had also posted several anonymous comments on the website nola.com (the same one utilized by former AUSA Perricone), including at least one involving this case. AUSA Mann had been doing so for some four to five months prior to AUSA Perricone's resignation in March AUSA Mann did not disclose in her July 2,2012 response to this Court that she also had posted comments involving this matter. While we cannot retrieve the entirety of Ms. Mann's postings from nola.com, the one comment involving this matter that was alleged in Mr. Heebe's civil pleading is as follows: In response to a December 2, 2011 news story announcing the original indictment involving the defendants here, poster "eweman" wrote: They have been accused of stealing hundreds of thousands of our dollars and are charged with felonies galore. It sound like a couple of you out there think that won't land em in the pen. Haven't you been paying attention? You take the king down for anything you got him on. A1 Capone went to jail for taxes, remember? AUSA Mann posted on nola.com under the name "eweman." As a result, she was immediately removed as First Assistant U.S. Attorney and Criminal Chief and the matter was referred to the Department of Justice's Office of Professional Responsibility (OPR) in Washington, D.C. in accordance with the provisions of the United States Attorney's Manual. The matter is presently under investigation by OPR. Based on information available, we have no reason to believe the Court's ruling on July 26, 2012 needs revision or reconsideration. However, given this Court's statement in its July 26,2012 Order regarding postings made by former Assistant United States Attorney Perricone, we wanted to bring this information to your attention. If you have any questions, feel free to contact me at Sincerely, #

3 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 1 of 8 EXHIBIT A

4 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 2 of 8 U.S. Department of Justice Eastern District of Louisiana U. S. Attorney S Office Jan Masellr Mann The Poydras Center Telephone. # :(504) First Assistant United Slates Alrorney 650 Poydras Street. Suire 1600 Fax #: (504) New Orleans, Louisiana July 2,2012 Honorable Hayden Head Senior U.S. District Court Judge Eastern District of Louisiana (Visiting) 500 Poydras Street New Orleans, LA RE: U.S. v. Aaron Broussard, et a1 Criminal Docket No "HH" Dear Judge Head: The purpose of this report is to respond to the Court's order of June 27,201 2, ordering that the United States file under seal for the Court's in camera inspection the inquiry conducted by the United States Attorney's Office (USAO) as described in Mr. Letten's affidavit. This report will outline the inquiry undertaken by the USAO into defense assertions that someone leaked information regarding the issuance of target letters to the defendants and that there was a disclosure regarding the defendants' indictment.' Additionally, this report includes information as to the USAO's media policy as well as a discussion of the events surrounding the resignation of former Assistant U.S. Attorney Salvador Perricone. ' The term "leak" is used in this report, as it has been by all of the parties, including the government, during litigation about these issues and in internal communications. The govemment uses that term in its most generic sense, to refer to any early communication to the media, by any person, of secret information. As used in this manner, the term "leak" certainly refers to any deliberate improper communication by a government official, but it also refers to any other communication - whether by a government official or another person, and whether based upon protected information or inferences from public information - if that communication leads to the early release of protected information. In other words, by using the term "leak," the govemment in no way suggests (and, in fact, the government expressly denies) that any governmental employee involved in the investigation or prosecution of this case improperly released any information about this case.

5 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 3 of 8 This report includes information protected by the attorney-client privilege, work-product privilege, and deliberative process privilege. The government waives these privileges only for the limited purpose of facilitating an exparte, in camera review of the government's inquiry into any potential leak. The government does not waive (and in fact, fully asserts) these privileges with respect to any further disclosure of this report or the information contained therein, expressly including any disclosure to defense counsel. A. Target Letters Background of the Issuance of the Februa~y 14, Target Letters and the December 2, Indictment On February 14,201 1, this office prepared target letters for Aaron Broussard, Karen Parker, and Thomas Wilkinson to advise them that they were "targets" of a federal grand jury investigation. See Exhibit 1. The USAO made arrangements with the FBI to deliver these target letters to the defendants. The target letters were provided to Julian Murray (Aaron Broussard's attorney at the time), David Courcelle (Karen Parker's attorney), and Thomas Wilkin~on.~ On February 16, , two days after the target letters were drafted, the Times-Picayune's on-line website, nola.com ("Times Picayune"), and WWL-TV began reporting that Aaron Broussard and Karen Parker had received target letters. In its news story, WWL-TV reported that, in addition to Aaron Broussard and Karen Parker, Tim Whitmer and Tim [sic] Wilkinson had also been mentioned as possible targets. See Exhibit 2. In fact, Aaron Broussard's attorney at the time is actually quoted in the WWL-TV report and he gave an interview which aired on the evening of February 16,20 1 1, wherein he reported that his client, Aaron Broussard, had received a target letter. Likewise, the February 16,201 1 Times-Picayune article reported "An attorney for former Jefferson Parish President Aaron Broussard said today he received a target letter describing charges that the federal government is pursuing against his client." See Exhibit 3. It is important to note that nowhere in either the Times-Picayune report or the WWL-TV report is there any mention, insinuation, or attribution that the source of the information relating to the issuance of these target letters came from anyone in the USAO or FBI. To the contrary, the obvious inference from these reports is that the information regarding the target letters was disclosed by attorneys for the defendants. Moreover, the inclusion of Tim Whitmer's name as a potential target also defeats the defendants' current claims that the USAO leaked the information to the press regarding the issuance ofthe target letters since the information regarding Whitmer was not accurate. Wilkinson agreed to accept service of the target letter since his own attorney was unavailable.

6 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 4 of 8 B. Indictment On or about November 8, 201 1, Robert Jenkins, David Courcelle, and Ralph Whalen, attorneys for the defendants, were sent plea offer lettes3 These letters advised the defendants' legal representatives that the USAO anticipated seeking an indictment against their clients in the next few weeks. These plea offer letters also requested that the defendants respoild to the letter no later than November 16, See Exhibit 4. After receiving these plea letters, David Courcelle and Ralph Whalen, attorneys for Karen Parker and Thomas Wilkinson, requested a meeting with U.S. Attorney Jim Letten prior to the presentment of an indictment. Accordingly, on December 1, 201 1, U.S. Attorney Jim Letten, two Assistant U.S. Attorneys, Gregory Kennedy and Brian Klebba, and 1 met with David Courcelle and Ralph Whalen. During the meeting, Tom Wilkinson's attorney asked when an indictment was likely to be presented to the grand jury again his client. U.S. Attorney Jim Letten declined to answer Mr. Whalen's question, but did advise him, as the plea letter already had, that an indictment would be presented in the very near future. No one from the USAO told either Courcelle or Whalen when an indictment was going to be presented. Very shortly after the meeting with attorneys Courcelle and Whalen, the USAO was contacted by a WWL-TV reporter who asked for a comment on an upcoming indictment in the Jefferson Parish case. Moreover, the December 1, meeting took place on a Thursday night and the grand jury that had been investigating the Jefferson Parish matters met on Fridays and it is well known to the press and local attorneys familiar with federal criminal practice that there are two regular federal grand juries in the Eastern District of Louisiana - one that meets on Thursdays and one on Fridays. Considering the defendants were delivered target letters on February 14, and subsequently received plea letters on November 8, 201 1, it is not surprising that the press could "connect the dots" and surmise that an indictment against the trio was imminent. Nonetheless, U.S. Attorney Jim Letten and I take very seriously any allegations that one of our staff leaked information to the media and accordingly we conducted an inquiry into these assertions. The Government's Inquiry As a result of the allegation made in defendant Broussard's and defendant Wilkinson's motions for recusal, U.S. Attorney Jim Letten conducted an inquiry to determine ifthe USAO or the FBI was the source of the leaks relative to the issuance of the target letters or the December 2,201 1 indictment. This inquiry consisted of U.S. Attorney Letten questioning 13 members of the U.S. Attorney's Office supervisory staff on May 22, During this meeting, U.S. Attorney Letten questioned USAO supervisors to determine if any of them leaked any information to any member of the press intentionally or unintentionally or if they knew about anyone else leaking information regarding the target letters and/or the indictment related By this point, Aaron Broussard had retained Robert Jenkins, Karen Parker had retained David Courcelle, and Tom Wilkinson had retained Ralph Whalen as their attorneys.

7 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 5 of 8 to Karen Parker, Aaron Broussard, and Tom ilk ins on.^ Each supervisor responded negatively regarding the requested information. Then, on May 23, 2012, U.S. Attorney Letten organized a meeting of all of the USAO staff members with any knowledge or involvement in the Broussard/Wilkinson investigation and prosecution. In addition, all of the FBI special agents and supervisory special agents with knowledge of this investigation were summoned to this meeting at the U.S. Attorney's Office. In total, thirteen FBI agents, USAO support staff, and prosecutors were present and questioned.5 Likewise, each individual present and questioned in the meeting responded negatively regarding the requested information. Thus, U.S. Attorney Letten concluded that the United States did not "leak" or disclose any information to the media regarding the issuance of the USAO supervisory staff members questioned included the following: Eileen Gleason, Senior Litigation Counsel Jan Mann, First Assistant U.S. Attorney/Criminal Division Chief Jim Mann, Supervisor, Financial & Computer Crimes Unit Brian Marcelle, Deputy Supervisor, Organized Crime & Gang Unit Brian Klebba, Supervisor, Organized Crime & Racketeering Strike Force Unit Tracey Knight, AUSA, Professional Responsibility Officer Bill McSheny, Senior Counsel to the Criminal Division Patrice Sullivan, Deputy Supervisor, Financial Crimes Unit Fred Harper, Deputy Chief, Criminal Division Tom Watson, Civil Division Chief Michael Simpson, Discovery and Outside Training Coordinator/Giglio Officer Duane Evans, Senior Litigation Counsel Sharon Smith, Supervisor, Affirmative and Employment Discrimination Unit The FBI agents and USAO personnel questioned were: Paul Duplessis, FBI Special Agent Jerry Bezet, FBI Special Agent Laura Monti, FBI Special Agent Peter Smith, FBI Supervisory Special Agent Dan Evans, FBI Supervisory Special Agent Matthew Chester, AUSA Brian Klebba, Supervisor, Organized Crime and Gang Unit Gregory Kennedy, Supervisor, Terrorism Unit Marsha Rhoto, Lead Legal Assistant Anna Christman, Assistant to Jim Letten Patty Ortiz, Paralegal Specialist Alana Lincoln, Legal Assistant Laura Orth, Paralegal Specialist

8 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 6 of 8 target letters to the defendants, nor did the United States "leak" or disclose to the media or any unauthorized person the defendants' indictment prior to the actual December 2, indictment. Also interviewed was former-ausa Perricone who asserted that he did not release or leak any information about the indictment before it became public, and that he did not provide any information about the indictment to members of the press or anyone else... Inquiry into Fonner AUSA Sal Perricone On March 13, 2012, the USAO learned that the subject of one of our pending corruption investigations had filed a Pre-Petition Discovery pleading in Orleans Parish Civil District Court seeking to determine if then Assistant U.S. Attorney (AUSA) Sal Perricone had posted comments under the name HenryLMenckenl9.5 1 on the news website nola.com. The stated reason for the requested deposition was that subject of the probe, Fred Heebe, was considering a defamation lawsuit against Perricone for comments made on nola.com. The pleading was later removed to Federal Court and withdrawn by Heebe. No defamation suit has been filed to date. On the same day the USAO learned of the above-described pleading, former AUSA Perricone admitted to U.S. Attorney Jim Letten and me that he had posted comments under the "Mencken" name including some comments about news stories on our office's cases. While admitting his identity, he denied having ever disclosed any non-public information, claiming to have been editorializing about information contained in the news stories. Based on Heebe's state court filing and Perricone's admission, U.S. Attorney Letten and I immediately, on March 13,20 12, contacted the Office ofthe Deputy Attorney General (ODAG), and General Counsel's Office (GCO), which provides legal advice to U.S. Attorney's Offices around the country, requesting an investigation. On the following day, we reported the Perricone matter to the Office of Professional Responsibility (OPK). OPR assigned an attorney, initiated its inquiry and spoke to Perricone on March 15, On the following Monday, Perricone resigned his position and retired from the USAO on March 19, OPR announced that it would continue its investigation despite Perricone's retirement. In the aftermath of the revelation about Perricone having been an anonymous commenter on-line, U.S. Attorney Letten and I consulted at great length with GCO about the appropriateness of District recusal in any pending matters or cases. In consultation with GCO and others and approved by the Associate Deputy Attorney General who is the final authority, we sought and obtained recusal from any decision regarding the removal to federal court of the Heebe filing in state court. We sought and obtained recusal in the case of US. v. Fazzio, a case Perricone had not only been a counsel of record on but also because Fazzio is the Chief Financial Officer for Heebe and is closely connected to Heebe's criminal conduct. Therefore, we were of the belief that further prosecution of Heebe's top executive and ally could appear to be retaliation for Heebe having identified Perricone as a "blogger."

9 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 7 of 8 Our office, in consultation with the Department of Justice (DOJ), carehlly considered whether recusal was appropriate in other matters and determined we would seek recusal in those matters related to Heebe. We followed this protocol on several related investigations where Heebe was a central figure although not necessarily the person who would be charged. As scrupulously as we considered and sought advice on cases where recusal might be appropriate, we also followed the same protocol in determining where we should not be recused.... The Broussard/Wilkinson case fits this latter category. First, the case did not involve Heebe as a witness or subject. Second, Perricone had neither been assigned to handle the case before or after the indictment was returned and had played no decision making role in it. Our view on this was vetted in DOJ and concurred in by the deciding officials. In reviewing Perricone's conduct internally apart from OPRYs inquiry, we have learned nothing to suggest he was a leak or source for the press or that he had relationships with any particularjournalists. Rather, he inappropriately would read news articles about our cases and many other subjects and make usually negative comments about the content of the articles. In his denial to me of leaking the target letters or the date of the indictment in this case, Perricone represented, what I believe to be accurate based on my personal recollection, that he was not made aware of the timing of the target letters or the precise indictment date. I and others had taken precautions to limit dissemination of those types of information to those with a need to know and Perricone did not fit into that category in the Broussard/Wilkinson case. USAO Press Policy The USAO does not permit its employees to talk to reporters unless specifically authorized by U.S. Attorney Jim Letten. Normally, the only three individuals in the USAO who are permitted to speak with members ofthe press are myself, U.S. Attorney Jim Letten, and Jim Letten's assistant, Anna Christman. The USAO EDLA vigorously adheres to established DOJ protocols and regulations regarding contact with members of the media. A copy of these DOJ regulations are attached as Exhibit 5. Members of the USAO are specifically instructed not to discuss matters with reporters or any member of the press. USAO staff and AUSAs are advised to immediately report to myself or U.S. Attorney Jim Letten any press-initiated contact. In the case of a press-initiated contact, either myself or U.S. Attorney Jim Letten will contact that member of the press corps. Similarly, U.S. Attorney Letten has instructed numerous members ofthe press not to contact USAO staff or AUSAs on any matter. This press policy has been the longstanding policy ofthe USAO and 1 am confident that all of the members of this office are not only aware of the policy, but also comply with it. Conclusion At the conclusion of our inquiry, it appears that the information reported by the press pertaining to the delivery of the February 14, target letters and the December 2, indictment which appeared to have come from a "leak," might rather have come from somebody

10 Case 2:11-cr HH-FHS Document Filed 12/03/12 Page 8 of 8 outside the government who was close to this investigation, i.e. counsel for the defendants and/or an associate of one of the defendants in this case. However, it is not possible for the government to rule out with 100% certainty the possibility of a leak or to determine with 100% certainty where any leak originated. The government is confident that the government officials identified in this report did not provide any information to the press regarding the target letters or the indictment. At the conclusion of this inquiry, U.S. Attorney Jim Letten and I are confident that no person associated with the prosecution or investigation leaked this information to the press We are also confident, at the conclusion of this inquiry, that it is more than likely that the information leading to the reports regarding the February 14, issuance of the target letters originated from the defendants rather than lhe prosecution team. Similarly, the December 2,201 1 indictment did not come from a "leak" at all, but rather came from non-government sources who were comfortable, based on non-sealed information, "confirming" for the press (without attribution, and therefore with no risk of embarrassment if they were wrong) that an indictment was imminent. We share the Court's concern that any potential leak of sensitive information is a serious matter, but this office is confident that no sensitive information was leaked to anyone in the media concerning the February 14,201 1 target letters or the December 2,201 1 indictment. We hope that this report has sufficiently answered the Court's concerns about these matters. If the Court needs any further clarification, please do not hesitate to contact me at (504) Very truly yours, JIM LETTEN UNITED STATES ATTORNEY J& MASELLI MAW First Assistant U.S. Attorney Jh4M:mpr Enclosures