Elliott v. Perez, Civ. A. No. 82-574

• Citation: 561 F. Supp. 1325
• Decision Date: 31 March 1983
• Docket Number: 82-584.,Civ. A. No. 82-574
• Parties: James ELLIOTT v. Leander H. PEREZ, Jr., et al.
• Court: U.S. District Court — Eastern District of Louisiana

561 F. Supp. 1325

James ELLIOTT v. Leander H. PEREZ, Jr., et al.

Civ. A. Nos. 82-574, 82-584.

United States District Court, E.D. Louisiana.

March 31, 1983.

Anna E. Dow, Baton Rouge, La., Michael S. Fawer, New Orleans, La., for plaintiffs.

Ben C. Toledano, Peter J. Butler, New Orleans, La., for defendants.

OPINION AND ORDER

McNAMARA, District Judge.

This is a civil rights action filed pursuant to 42 U.S.C. 1983 and 1985, et seq., for damages and injunctive relief against two state prosecutors, a State Court Judge, and others, alleging, inter alia, bad faith and malicious prosecution against the Plaintiffs, as well as the improper discharge of a Special Grand Jury, in violation of the Plaintiffs' civil rights. The causes of action alleged by each Plaintiff in this consolidated matter arise out of the following factual situation.

On August 20, 1979, Leander H. Perez, Jr. acting in his capacity as District Attorney for the Parish of Plaquemines, Louisiana, convened a Special Grand Jury to investigate the activities of certain persons in Plaquemines Parish. James Elliott, one of the Plaintiffs in the instant action, was selected as the Grand Jury's foreman. During the course of the Grand Jury's term, Plaintiff, Joseph E. Defley, Jr., appeared as a witness on two occasions.

The term of this Grand Jury was initially for one year, but its term was extended to February 19, 1981. Because the Grand Jury's investigation included the activities of Chalin O. Perez, the brother of the District Attorney, the latter recused himself from any participation in the investigation insofar as it related to or involved his brother, Chalin O. Perez. Twenty Fifth Judicial District Judge Eugene E. Leon, Jr., on October 1, 1980, appointed Giles J. Duplechin, District Attorney ad hoc, in place of the recused District Attorney.

On the evening of February 15, 1981, unbeknownst to representatives of the District Attorney's office, a brown envelope containing numerous copies of a letter of the same date from Joseph E. Defley, Jr. and addressed to James Elliott, along with an attached resolution, was delivered to his home. The letter stated in its entirety:

"February 15, 1981 Mr. James Elliott 103 Hodge Avenue Belle Chasse, Louisiana

Dear Mr. Elliott;

Only four more days for the grand jury to complete its work. I don't envy you, because I'm sure that you have a great deal to attend to.

I hope that you will forgive this intrusion, but I was anxious to bring some ideas out which might assist the grand jury in attempting to cut down on the corruption in the Parish.

For years, I have heard people say that what Judge Perez did in forming Delta Development and fraudulently diverting mineral leases to that corporation was "not illegal — just unethical".

I disagreed with this, and on April 2, 1981, I read a (proposed) resolution before the Commission Council in which I outlined the fraudulent scheme by which Perez bilked the public of uncounted millions of dollars.

A copy of this resolution is enclosed — it is the same one which 60 minutes filmed.

I believe that Luke Petrovich concurs with me in connection with my theory of the case. And for the first time, when I read of the most recent indictment, I saw that someone else — the grand jury — also thought that the scheme was fraudulent from its inception, in 1934. And of course, if you once concede that, then the children, who were given sole ownership of Delta Development in 1940, were coconspirators, and direct, willing participants (in), and beneficiaries of, the fraud.

Parenthetically, I think that I should mention that I have two objectives in mind as far as Plaquemines Parish is concerned — first, to try to clean up the government, and it is my belief that this can only be done by establishing some kind of representative government, and secondly, to try to restore (the) oil lands to the school board, and the council, from whom they were stolen. It is not my desire to see ANYBODY go to jail, although sometimes I realize that this is necessary, either to protect the public, or to discourage others from commiting the same acts.

It appears that the power of the Perez family may be seriously eroded, and if we are successful with the reapportionment suit, we should see representative government established. Which leaves the problem of reacquiring the lands.

If we file a civil suit, it (c)ould take twenty or thirty years for it to be resolved. In addition, the defendants would initially be the Perez children, who were willing accomplices to their father's larcenous (acts). But if one or more of the children die, and the grandchildren inherit Delta Development, a court hearing the case several years from now might be reluctant to divest them of their property rights, when by no stretch of the imagination could they be said to have been privy to the original wrongdoing.

I am convinced that the solution must be political, rather than judicial. And I have been pondering the problem — trying to find an answer. I always knew that if sufficient pressure could be brought on the Perezes so as to make them consider a return of the oil lands and leases, the Parish would be the richer, by many millions of dollars.

The solution was suggested by the latest indictment of Chalin. An astute District Attorney might just be able to bargain with Chalin toward reducing the charge, or taking a light sentence in exchange for a plea or, if necessary, dropping the charge altogether, in exchange for Chalin's relinquishing any and all claims which he or Delta Development might have on Parish Lands.

This does not address the question of how pressure is to be put upon Lea and the two sisters, as well as Delta Development and the officers of that company, including Mr. Eustis.

My feeling is that they are in a position to be charged as principals in a criminal conspiracy to commit theft of public funds by fraud committed on the Parish. The original scheme, of course, dates back to 1934, but the conspiracy continues, even up to the present time. La.Rev. Statutes 14:26; 14:67.

In addition to this, they could be charged with receiving stolen things. La. Revised Statutes 14:69.

They could also be charged as accessories after the fact, in that they he(l)ped their father, and continue to help Delta Development Company and Mr. Eustis, to bilk the public in an ongoing scheme of fraud. La.R.S. 14:25.

Lea Perez could further be charged with malfeasance in office, for deliberate failure and refusal to investigate and prosecute the theft of public funds, which is continuing.

Perhaps, if enough pressure could be put on them, all the Perez family, as well as Delta Development, and other companies which may be involved in the scheme, could be persuaded to cough up their ill gotten gains, in order to avoid the penalties of law.

I understand that you might have difficulty in considering indictments as outlined, because of one or more court orders, and for one reason or another, you may decide that my suggestions are not practical. I merely put them to you as being possible courses of action — you will have to consult counsel and make your own decision concerning these matters.

Please feel free to share the ideas that I have outlined, and to discuss them with the grand jury. If you want me to appear to outline these ideas, I shall be happy to — just have the secretary call me.

I hope that you will not mind my writing you — I feel a certain sense of desperation because of the short time left to the grand jury, and decided that this was the quickest means of communicating with you.

You need not bother acknowledging receipt of this letter — if you need any further information, please call me.

Thank you very much for the major effort which you and the other members of the grand jury are making — you are doing a real service to the people of the Parish of Plaquemines. Your courage and leadership will be long remembered.

Yours truly Joseph E. Defley, Jr.

P.S. The purpose of this letter is to serve as a continuation of my testimony; it is not intended for general circulation. I would appreciate your confining its dissemination to those who have a "need to know", as we used to say in the Marine Corps."

Attached to the Defley letter was a Resolution which Defley apparently proposed be adopted by the Plaquemines Parish Commission Council, wherein the Council was to require a strict accounting from Delta Development Company, Inc. and various members of the Perez family of all funds received in connection with any sale or lease agreement relating to public lands in Plaquemines Parish. The Resolution was to further require that certain oil companies turn over to the Plaquemines Parish Commission Council all funds which they would otherwise pay to Delta Development Company, Inc., its stockholders or assigns, insofar as said monies represent profits on public lands. Finally, the Resolution would further request that the United States Attorney for the Eastern District of Louisiana and the United States Department of Justice take whatever criminal and/or civil action necessary to secure the return of all public lands and monies unlawfully diverted by Delta Development Company, Inc., its shareholders and assigns.

Although it is uncertain how many copies of the letter were delivered to Elliott, on the following morning, Elliott distributed a copy of Defley's letter to each member of the Grand Jury and at no time did Elliott tell either Judge Leon or any legal adviser to the Grand Jury that he had received the letter from Defley.

On February 17, 1981, two days prior to the end of its term, the Grand Jury voted to indict Leander H. Perez, Jr., an officer of Delta Development Company, Inc., for the alleged unlawful taking of $43,000,000.00 in Parish funds, and Delta Development Company, Inc., for the alleged theft of $72,000,000.00 in Parish funds. After the Grand Jury voted the aforementioned indictments, James Elliott, foreman of the Special Grand...