River Birch executive Dominick Fazzio seeking separate trial from co ...

River Birch executive Dominick Fazzio, left, is asking a federal judge to grant him a separate trial from his co-defendant and brother-in-law, Mark Titus. (Photo by The Times-Picayune archive)

The government threw charges in separate schemes together, ?like the kitchen sink,? just to ?shore its thin evidence.? -- Fazzio's motion

Ever since federal prosecutors in 2011 trained their sights on River Birch landfill executive Dominick Fazzio, his criminal case has been tied to the accusations against his brother-in-law, Mark Titus. Indeed, the two men face a joint trial Dec. 17 on charges that they conspired to embezzle about $1 million from Garner Services, a company Titus co-owns.

But now Fazzio is asking a federal judge to grant him a separate trial, arguing that a joint trial with Titus would violate Fazzio's constitutional right to confront his accuser. That's because the accusation that Fazzio was involved in the conspiracy came from Titus himself, as part of a plea deal in which Titus admitted to one charge related to the alleged conspiracy. Fazzio has denied any wrongdoing.

In a motion filed Tuesday, Fazzio's attorney, Arthur "Buddy" Lemann, said this is a "he said/he said" case. But because Titus has made it clear he won't be testifying for the government, Lemann said all prosecutors have is the testimony of FBI agents as to what Titus confessed to them. Lemann said that's extrajudicial evidence that can't be introduced in a joint trial.

"You can't have a trial together. The only evidence that Fazzio participated in the alleged conspiracy is Titus' confession, but he won't testify," said Lemann. "I expect to win this motion."

In typical fashion, Lemann used the motion to take shots at prosecutors, accusing the government once more of having "an all-consuming obsession" with Fazzio in order to get to River Birch co-owner Fred Heebe, who is considered the probe's main target.

The motion also said the Justice Department, which took over the case after U.S. Attorney Jim Letten recused his office in the spring, is "attempting to convert this cesspool of a case into an Olympic swimming pool."

Lemann also alluded to language from previous court proceedings, including U.S. District Judge Ginger Berrigan's concerns about the government's actions and the scandals of online comments posted by Letten's staffers Sal Perricone and Jan Mann.

"This 'troubled' case; this 'disturbing' case; this 'heavy-handed' case; this 'little disingenuous' case; this 'Mencken' case; this 'eweman' case -- like Solomon's baby, should be cut in half," Lemann wrote in arguing for separate trials.

The Justice Department has declined to comment on the prosecutions. But it's likely? that prosecutors, who charged both Fazzio and Titus together, will oppose Lemann's request for separate trials.

Lemann last week lost his third try to dismiss the charges against Fazzio, eliminating one of the final legal obstacles for a trial.

In his motion Tuesday, Lemann also asked Berrigan to separate the charges in the alleged Garner Services fraud scheme from charges that Fazzio participated in a separate tax evasion conspiracy with businessman Hank Ton.

Fazzio was accused of being part in the separate schemes as part of an superseding indictment filed last month. The tax evasion charges alleged that Fazzio helped Ton hide the true amount of his companies' payroll in order to avoid about $3.5 million in taxes. Ton pleaded guilty last month to being part of the scheme and is expected to testify against Fazzio, who has said he did nothing wrong and only prepared tax filings based on data Ton provided.

Lemann's motion said no single act joins the Garner Services and the Ton alleged schemes. The government threw the two together "like the kitchen sink," Lemann argued, just to "shore its thin evidence." The only connection between the two conspiracies, Lemann said, is Fazzio.

"That is simply not enuogh" to keep the two kinds of allegations in one single indictment, Lemann argued.

Separately, Titus last week asked Berrigan to dismiss the charges against him on the alleged Garner Services scheme, arguing that his 2011 plea deal precluded any additional accusations on that same issue. Berrigan has scheduled a hearing on Titus' motion for Dec. 5.

Source: http://www.nola.com/crime/index.ssf/2012/11/river_birch_executive_dominick.html

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