LYNN HAVEN, Fla. (WMBB) — As a hearing gets closer ahead of a planned February trial the remaining defendants in the Lynn Haven corruption case filed new motions to dismiss in hopes of ending the prosecution now.
This is the 18th and 19th motions to dismiss that have been filed in the more than two-year-old case, with varying degrees of success.
James Finch, the owner of Phoenix Construction, and Margo Anderson, the city’s former mayor, are charged together with conspiracy to commit bribery. Finch is also charged separately with two other counts of bribery and giving a false statement to the FBI. Anderson faces a separate bribery charge.
So far, the defense has been successful in getting Judge Mark Walker to throw out a variety of charges forcing prosecutors to seek several indictments over the past two years. Originally charged with more than 60 counts, prosecutors recently filed a new superseding indictment which only alleges 5 counts. The defense had previously been successful in having Judge Walker dismiss the conspiracy charge, only for the prosecution to file a rare motion for reconsideration. That motion was granted by the Judge, who re-instated the charge but wrote at the time that “Because this Court has an obligation to impose the least drastic remedy, it agrees that – while Count 1 is duplicitous – it should not have granted the motions to dismiss.”
The defense is once again attacking the conspiracy charge, hoping that the judge, who has previously scolded the prosecution, will grant the motion. The defense continues to argue that prosecutors have failed to properly file their indictments and that they lack the proof necessary to go forward with the trial.
Also, defense attorneys are once again claiming prosecutorial overreach.
“Due to the government’s repeated disregard for the Court’s findings and conclusions of law, Defendant Finch respectfully suggests that dismissal is the appropriate remedy,” they wrote. “In short, the duplicity cannot be chalked up in this case as a harmless pleading defect or remedied by a curative jury instruction at trial. See EC No. 380 (detailing the government’s history of misconduct and impossible legal theories giving rise to a presumption of vindictive prosecution.). “
That filing lists several items that the defendants said is evidence of actual vindictiveness.
The list includes:
• The government’s refusal to discuss voluntary surrender before the return of the Superseding Indictment despite having met with Finch’s counsel, Finch’s through counsel having produced without incident tens of thousands of pages of documents, and Finch’s having knowledge that he would be charged.
• The FBI’s unhinged post-indictment call to Finch (despite his being represented by counsel) expressing extreme anger due to the government’s not having the opportunity to publicly arrest Finch in Lynn Haven in front of his family.
• The illegal use of a media group to orchestrate the announcement of these arrests, including posting on social media. ECF No. 228 at n.23.
• The government’s repeat attempts to manufacture a conflict of interest to seek disqualification of Anderson’s counsel.
• The government’s Motion for Rule 17(c) attorneys’ fee subpoenas, which this Case 5:20-cr-00028-MW-MJF Document 380 Filed 11/21/22 Page 30 of 34 Case No. 5:20-CR-28-MW/MJF 31 Court denied as an impermissible fishing expedition.
• The government’s repeated allegations that Finch is uncontrollable and should not be trusted to receive, review, or possess important information that could exonerate him.
• The government’s repeated misconduct before multiple Grand Juries.
• The government’s repeated failure to provide all Brady material “without request.”
• The government’s repeated violation of Court Orders.
• The government’s repeated reliance on unsupported and objectively false allegations.
• The government’s unjustified reliance on false witness statements to secure multiple indictments.
They are also arguing several legal technicalities having to do with the nature of bribery and conspiracy.
Finch and Margo Anderson have maintained that an RV that Lee Anderson, her husband, received from Finch was paid for and that even if it was not paid for it was not a bribe. They said prosecutors have failed to prove that the RV was either the reward or the payoff for any specific vote before the city council. The Judge has previously scolded this line of reasoning, stating back in April that “if somebody gave my wife (an expensive) RV and then I rule in their favor I’m certain I would be impeached.”
“There are no allegations of when a promise, offer, or agreement was made. There is no description of how these individuals expressed their intentions or understanding,” Finch’s attorney Guy Lewis wrote. “There is no detail whatsoever as to the nature of an alleged agreement or what was expected.”
Anderson’s attorneys Anthony Bajoczky and W. Robert Vezina, III, point out that the motorhome deal was done before Hurricane Michael and therefore could not have been a bribe for her alleged actions to funnel millions in contracts to Finch after the storm.
“Anderson could not have accepted or agreed to accept the motorhome with the intent to influence these unknown and unforeseen matters,” her attorneys wrote.
Lewis also argued that an alleged bribe to City Commissioner Antonious Barnes was simply a business loan. He points out that at one point Barnes told the FBI just that.
“In fact, in a videotaped discussion between Commissioner Barnes and former FBI Agent Borghini, Barnes explained the purpose of the loans,” Lewis wrote. “Barnes explained to the government those loans “had nothing to do with” any commission vote. His business with Finch and his service to the City of Lynn Haven “stayed separate.” At the conclusion of the interview, Barnes promises that he was never “up to selling a vote or anything of that nature.” It was a loan to a friend, nothing more.”
However, Barnes accepted a plea arrangement with prosecutors and is expected to testify against Finch at trial.
Lewis also said that Finch loved Lynn Haven and that he worked to improve the city.
“In short, Finch regularly participated in Lynn Haven government activity because he cared deeply about the town in which he was born and raised. And it may be that his participation in government naturally resulted in a ‘transaction, and series of transactions of the City in a manner favorable to Finch,'” Lewis wrote. “But, how can Finch’s advocating for cost-effective, good government, even if his company might have been the beneficiary of such a platform, be subject to criminal liability?”
Lewis added Finch should also be judged based on all his good works.
“The true measure of James Finch is best reflected by his giving and charitable nature. He is a proud citizen of Lynn Haven, Florida, and a two-time citizen of the year. He routinely donates time, money, and services to his community,” he wrote. “In fact, he has paid for the City’s Fourth of July fireworks display for the past four decades, donated countless amounts of resources into City projects, and directly supports several charities and individuals with disabilities. He recently donated hundreds of palm trees worth tens of thousands of dollars to the City as replacements. These are merely a few examples of James’s good works, and we stand prepared to provide dozens of additional examples when appropriate.”
In a third filing, Anderson’s attorneys asked for the Government to specify which actions she allegedly took while Mayor that were considered bribes, and which votes she allegedly cast that were part of the scheme.
A hearing in the case is set for December 12. The trial is set for February. There is no timetable on when Judge Walker will rule on these motions and others that are outstanding.