Maya Rodriguez / Eyewitness News
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NEW ORLEANS -- Another piece of the ongoing River Birch landfill probe went before a federal judge Wednesday.

This time it involves former River Birch landfill CFO Dominick Fazzio, who is trying to get his indictment thrown out because of an alleged secret deal between the government and his brother in law.

The hearing comes about a month before Fazzio is set to go to trial here over an alleged fraud scheme, and it's all tied into the larger River Birch case.

On the heels of a second federal prosecutor admitting to online postings in the River Birch case, a hearing Wednesday saw defense attorneys for Fazzio alleging prosecutorial misconduct, saying this time that the government had a secret deal with Fazzio's brother in law, Mark Titus.

'It's been my position all along that this was an ill-conceived prosecution to begin with. It was all to rush into an indictment to try and ensnare Fazzio to deliver Heebe,' said attorney Arthur 'Buddy' Lemann.

Wednesday morning Titus testified it was his understanding that in return for his cooperation, federal prosecutors would not seek forfeiture of his assets.

'The subsequent documents that came out, the PSR, the money judgment preliminary order for forfeiture, that all that stuff confirmed to him that in fact that unwritten gentleman's agreement, as you heard in court, was in fact true, that they were never going to move in on the property,' said Jimmy Ardoin, Titus' defense attorney.

But they did. Lemann contended that the forfeiture after Jim Letten's office recused itself and other federal prosecutors took over. Under cross examination federal prosecutors pointed out to Titus that he had previously said under oath that no one in the government had promised him anything.

Eyewitness News legal analyst Donald 'Chick' Foret said it's now up to Judge Ginger Berrigan.

'The issue before the judge today, it seems to me is, did the government, did the prosecutors, did the U.S. Attorney's Office play by the rules?' Foret said. 'And if they judge finds that they did not play by the rules, can Mr. Fazzio still receive a fair trial?'

The hearing ended without a ruling and with no indication of when she might rule.

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