LYNN HAVEN, Fla. (WMBB) — The attorneys for the last two defendants in the Lynn Haven Federal corruption case are once again attacking the indictment on its merits.
James Finch, the owner of Phoenix Construction, is charged with fraud and bribery in connection to several projects in Lynn Haven. Prosecutors say Finch took the city’s former Mayor, Margo Anderson, on expensive vacations and gave her an RV. They add that he gave another city commissioner, Antonious Barnes, a “loan” for more than $40,000 that Barnes never paid back. They also allege that Mayor Anderson received benefits by abusing her position as Mayor of Lynn Haven.
Prosecutors charge that in exchange Phoenix got several lucrative contracts with the city and Anderson made sure Finch was given work after Hurricane Michael, which should have gone to another company that could have done it at a lower price.
The defense has attacked multiple counts of the indictment, getting some thrown out in the process. Count 1, conspiracy, was originally dismissed but later put back in after the prosecutors asked the judge to reconsider his decision.
Now, four motions filed last week by defense attorneys are once again attacking multiple charges on technical grounds, including Count 1 again.
Anthony Bajoczky, Anderson’s attorney, is asking the court to throw out Counts 1, 4-7, 9-15, 17, 21, and 25. He also argues in most instances that the counts are not specific enough to constitute a crime.
Bajoczky also alleges that Anderson was unaware of Finch’s alleged bribery of Barnes and therefore she cannot face that particular part of the conspiracy case with Finch. The defendants have used this particular part of the law to great effect previously, forcing the prosecutors to get a second indictment and convincing the judge to separate the case into two trials.
“There is no allegation that Anderson knew of the alleged Finch-Barnes agreement. There is no allegation that the alleged Finch–Barnes agreement was dependent on, facilitated by, or furthered by Anderson,” Bajoczky wrote. “The alleged goal of influencing Barnes’ performance of official acts “was an end upon itself.” The same can be said of Barnes regarding the alleged Finch-Anderson. These alleged agreements are independent and, if anything, constitute independent, disconnected alleged conspiracies. Therefore, Count 1 is duplicitous and should be dismissed or, alternatively, the Government should be compelled to elect and pursue a single alleged conspiracy.”
Meanwhile, in a motion to dismiss Count 16 of the second superseding indictment, Guy Lewis, attorney for Finch, argued that prosecutors can’t prove a quid-pro-quo between Finch and Anderson actually existed. Second, prosecutors have a timeline in Count One that doesn’t match the timeline in Count 16. That’s important because a law that governs federal funds might restrict prosecutors from charging a defendant with crimes outside of one year.
“The government tries to shoehorn over six years of activities alleged within Count 1 into a single one-year period in Count 16,” Lewis wrote. “The inconsistencies between Count 16 and Count 1 are apparent.”
The timeline must be consistent for the charge to go forward.
“The government cannot expand and contract the timeline to satisfy the one-year rule,” Lewis said. “The facts are the facts, and the government is not entitled to argue more than one set of facts at a time.”
In a motion to dismiss Count 26 Lewis argues that the count lacks specificity and fails to state an offense punishable by United States statutes. Here Lewis argues that the charge is ambiguous and that nothing in the indictment indicates exactly what lie Finch is supposed to have told to the FBI. Prosecutors say Finch presented them with a false bill of sale and that Anderson never paid for the motorhome but Lewis offers a different view.
“The government’s conclusory leaps and the presentation of evidence created a false dichotomy,” Lewis said. “Just because (the FBI) could not locate or trace a specific cash transaction does not objectively prove that it did not or could not have happened. Indeed, the inherent nature of cash transactions militates against the government’s flawed and impossible conclusions about what Finch knew to be true.”
Lewis is also asking the judge to dismiss Counts 2-14 because they do not “sufficiently allege legally cognizable claims of “honest services fraud” violations.” Here again, Lewis argues that prosecutors have not properly explained what “quid-pro-quo” was exchanged.
The first count, Conspiracy, is under attack again by the defendants. Lewis states that there are multiple “alleged agreements [that] are independent and, if anything, constitute independent, disconnected alleged conspiracies.”
“In this case, there are no allegations of a promise or agreement in the first 122 paragraphs of the Second Superseding Indictment. There are no allegations of when a promise was made. There is no description of how these individuals expressed their intentions or understanding. There is no detail whatsoever as to the nature of an alleged agreement or what was expected,” Lewis wrote. “Although ‘in some circumstances, a wink and a nod, an exchange of monies, and a subsequent vote on a bill likely will be sufficient,’ there are no allegations of a wink and a nod in this case.”
He added that Walker has questioned this aspect of the case several times.
“Even worse, the government here has declined to plead with specificity or precision despite multiple invitations from this Court and despite a clear and overriding mandate from the Supreme Court,” Lewis wrote. “Despite being ordered multiple times to plead with basic precision, the government has either failed or declined. Therefore, dismissal is required.”