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Nate Cain

Former prison warden Nate Cain and his ex-wife are asking a federal judge to throw out information key to their indictments for making fraudulent purchases on the Avoyelles prison's dime, arguing that the evidence was illegally obtained.

The attorney representing the Cains alleges the Office of the Inspector General — the agency charged with investigating fraud and corruption at state agencies — does not have legal authority to obtain search warrants, an action essential to the 18 federal fraud charges against the now-estranged couple.

Nate Cain, the eldest son of legendary retired Louisiana jailer Burl Cain, and his ex-wife have asked that evidence obtained from the inspector general's search warrant be suppressed. The ex-wife, Tonia Cain, has reverted to her maiden name, Tonia Bandy. 

The Inspector General's Office "exceeded their statutory authority in executing a search warrant and seizing certain evidence," the Cains argue in a motion filed earlier this month in the U.S. Western District of Louisiana. "Nothing in the statute authorizes the OIG to obtain a search warrant to carry out these investigations."

However, federal prosecutors disputed those claims in a response to the motion filed Feb. 16, citing Louisiana law that designated the Inspector General Office as a "law enforcement agency and conferred all investigative power an privileges."

While the statute governing the Inspector General calls the office a law enforcement agency with investigative powers, it restricts its investigators from making arrests. It does give the IG's Office power to subpoena and gain access to computer systems and information maintained by law enforcement but makes no mention of authority to issue search warrants.

Greg Phares, a former chief investigator for the IG, said he filed search warrants for the Inspector General's Office in the past but added that the law is not clear.

"The statute is contradictory and it's given rise to a lot of litigation," said Phares, now chief deputy at the East Feliciana Parish Sheriff's Office. "It should have been cleaned up long ago."

In this case, Nate Cain and his ex-wifeboth face one count of conspiracy to commit wire fraud and 17 counts of wire fraud over purchases allegedly made with state credit cards during their tenure at Avoyelles Correctional Center in Cottonport, now known as the Raymond Laborde Correctional Center.

Nate Cain resigned as warden in May 2016 amid multiple investigations and newspaper articles exploring nepotism and possible misconduct, some of a potentially criminal nature.

His father was forced out as warden of the Louisiana State Penitentiary at Angola months earlier over questions about his business dealings with relatives and friends of inmates.

The Cains' attorney, John McLindon, said the judicial system has not yet expressly ruled on the legality of search warrants filed by the Inspector General.

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He filed a similar motion in 2015 in state court during the trial for Livingston Parish contractor Corey delaHoussaye, who was accused of overbilling after Hurricane Gustav — following an IG investigation — but had charges later dropped. A state judge initially ruled that Louisiana law does not grant the IG authority to obtain search warrants, but a circuit court later overruled that on a constitutionality issue, without addressing search warrants.

"I think a court needs to address it," McLindon said.

If the Cains' motion to suppress the evidence from the search warrant is granted — meaning the federal judge rules the IG does not have the legal authority to execute search warrants — it could also affect other cases, McLindon said.

"It's possible that other defendants who were investigated by the Inspector General would go back and take a look at their case and maybe even ask a judge to reopen it," McLindon said.

Federral attorneys argued in their response that legislators who wrote the law establishing the IG's Office"expressly withheld the arrest power" but otherwise fully granted the office powers as law enforcement officers.

They argue the power to subpoena is listed in the law not because it is one of the few powers the IG officers have, but because it is an "additional grant of authority." Not all law enforcement agencies can grant subpoenas, federal proscutrs argue.

"If the Legislature intended to withhold search warrant power from the Inspector General — a power conferred to law enforcement officers in Louisiana — it would have stated as much like it did for the arrest power," federal attorneys wrote in their response. "Nowhere in the Inspector General's enabling statutes is there any prohibition on the authority to obtain search warrants."

Inspector General Stephen Street declined to comment on the filings because the litigation is ongoing.

Agents from the state’s Office of Inspector General raided the Cains' home at the Cottonport prison in June 2016 after obtaining a search warrant, seizing 52 items, about half of which were related to firearms or gun parts. It's not clear how many of those items are relevant into the charges against them in this case.

The Cains have requested a hearing on the search warrant issue, but the federal government argued that would be unnecessary.

Nate Cain also faces a charge of obstruction of justice in a case where a 2016 administration probe found the former warden helped cover up an investigation in alleged sexual relationship between an inmate and a guard at prison he oversaw

Follow Grace Toohey on Twitter, @grace_2e.