Sorrento Town Councilman Randy Anny and his wife are asking a Baton Rouge federal judge to suppress all evidence obtained from what they call an unlawful search and seizure of his 26-foot fishing boat and trailer in February.
The Annys were indicted in August on wire fraud and conspiracy charges that accuse them of falsely claiming the boat “Who’s Ya Daddy” and trailer were fouled in Grand Isle by the 2010 BP oil spill to get money from the company.
The couple pleaded not guilty last month.
Attorneys for the Annys argue in court filings that too much time — more than four years — elapsed between the alleged fraud and the submission of a search warrant application to a federal magistrate judge by an FBI special agent and an Ascension Parish sheriff’s deputy.
“Because the information in the affidavit supporting the warrant application was stale, the warrant was not based on probable cause and the search and seizure of the boat were therefore unlawful. Any evidence yielded by the search of Mr. Anny’s boat should be suppressed,” Randy Anny’s attorney, Michael Davis, contends in a motion to suppress.
Assistant U.S. Attorney Chris Dippel counters in the government’s opposition that courts have made it clear there is no “magic period of time” that renders some search warrant applications timely and others stale.
“Instead, probable cause may vary based on the type of criminal activity at issue and the type of evidence being sought. In this case, although some of the alleged criminal activity was dated, the Court correctly found that probable cause still existed for the search, based on the information described in the affidavit,” Dippel says.
Anny claimed a company named Kellium LLC overhauled two outboard motors, replaced trailer bunks on the boat’s trailer and repainted the boat’s hull as part of the $7,800 in work, the indictment notes. Federal prosecutors have said the couple received the $7,800 payment in June 2011 in a joint bank account.
Dippel’s court filing Thursday quotes a portion of the search warrant affidavit that indicates law enforcement agents learned in mid-December 2013 from Davele Davis, the purported boat and trailer repairman and owner of Kellium, that the invoice was fraudulent and that Davis never worked on the 2004 ProSport boat.
Davis told agents that Kellium is essentially a ghost company that exists on paper but conducts no business. Davis said he keeps the company active and in good standing with the Secretary of State’s Office in case of future business prospects, according to the affidavit.
Davis also stated that Randy Anny was a former business partner of his uncle and that people have told Davis he is related to Anny, but Davis is unsure how, the affidavit states.
Randy Anny’s motion to suppress indicates his boat was inspected by an outboard motor service provider and a painter after it was seized. The government also took photographs of the boat and the trailer.
The boat, seized from the Anny’s Sorrento home, was later returned.
Barbara Falgoust Anny’s attorney, John McLindon, argues in a separate suppression motion that the search warrant affidavit is silent on the status of the boat from July 2010, when the repair invoice was dated, through the date of the seizure in February.
“Further complicating this issue are documents produced by the Government in pretrial discovery showing that the boat had been worked on again, July 15th, 2011,” McLindon states. “This fact, in and of it itself, makes the affidavit not only stale, but unreliable. No mention of this work in 2011 is mentioned in the affidavit.”
McLindon also indicates it is unclear in the search warrant application, the indictment or any other documents produced by the government why a deposit on a bank statement would trigger an investigation into Anny.
“But that is what happened,” he says.
U.S. District Judge James Brady is scheduled to hear the suppression motions Nov. 9.