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Judge sides with DA’s Office in the case of former fire chief

September 20, 2018

A state district judge shot down a motion seeking sanctions against the Cameron County District Attorney’s Office filed in the computer security breach criminal case against former Brownsville fire chief Carlos Elizondo.

Elizondo’s defense attorney, Eddie Lucio, filed the motion, which also sought a hearing to determine whether the DA’s Office violated attorney-client privilege as well as asking 107th state District Judge Benjamin Euresti Jr. to appoint a forensic examiner to determine whether investigators have reviewed any attorney-client privilege materials seized during a July 11 search of the former city official’s in-laws home.

Euresti denied the motion to determine whether attorney-client privilege was violated. The judge denied the request for a forensic examiner and also denied the motion for sanctions.

That July search was related to the 11-count indictment against Elizondo alleging computer security breach. Elizondo is also facing charges in a separate indictment alleging theft by a public servant and misapplication of fiduciary property for allegedly stealing from the Brownsville Firefighter’s Association. He has pleaded not guilty to the charges.

Lucio filed the motion after an Aug. 16 hearing to determine whether the DA’s Office had probable cause to seize the items from Elizondo’s in-law’s home.

During that hearing, Brownsville Police Officer Juan Alvarez, who was called to testify, revealed that the DA’s Office had obtained a second search warrant to review the materials seized from Elizondo’s in-law’s house with the first search warrant. Those warrants were signed by two different judges.

Lucio said Wednesday that the DA’s Office was keeping the search warrant secret, despite that it knew that Lucio had concerns about attorney-client privileged materials being seized.

Assistant District Attorney Art Teniente said in court filings Lucio’s motion was frivolous and desperate.

“ The defendant has attempted to hide evidence of his crimes by giving documents to a third party and storing said documents on that third party’s computer,” Teniente said in a motion.

According to that court document, investigators discovered evidence of crimes allegedly committed by Elizondo on his in-laws’ computer, namely accessing the Brownsville Fire Department’s Emergency Reporting System while being unauthorized to do so after the city demoted and suspended him due to theft allegations.

“ The defendant now wishes to hide behind a false claim of attorney-client privilege when he knows that he waived any possible privilege by giving those materials to a third party,” Teniente said in court documents.

On Wednesday morning, Lucio challenged that assertion, arguing that attorney-client privilege is not attached to a device, but it’s the communication.

“ He’s using someone else’s computer because they took his computer,” Lucio said during the hearing.

Teniente maintained that by using his in-laws computer, Elizondo handed the materials to a third party, which makes attorney-client privilege moot.

“ They are panicking and they are scared because they waived attorney-client privilege,” Teniente said.

The search warrant on Elizondo’s in-laws home is the third search warrant so far executed in the two criminal cases against the former fire chief.

mreagan@brownsvilleherald.com

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