LYNN HAVEN, Fla. (WMBB) — A new court filing from two defendants in the Lynn Haven corruption case accuses investigators and prosecutors of repeatedly breaking the law.
In what may be their last chance to get a federal criminal case thrown out before going to trial Margo Anderson, the former mayor of Lynn Haven, and James Finch, the owner of Phoenix Construction Inc., accused an FBI agent of perjury and violating attorney-client privilege, a high ranking member of the Bay County Sheriff’s Office of criminal activity and prosecutors of “outrageous misconduct that shocks the conscience.”
The 74-page filing comes after a three-day evidentiary hearing in early April where the defense attempted to show that the investigation, the prosecution, and the grand jury process were all so fatally flawed that Judge Mark Walker would have no choice but to throw out the criminal case.
Finch and Anderson are charged with bribery and fraud in the case and maintain that they are innocent of the charges.
In the new filing Finch’s attorney, Guy Lewis, wrote that prosecutors violated Walker’s orders and hid important evidence from the defense. He says investigators destroyed notes they were required to keep and that the grand jury process was reckless.
“A federal grand jury presentation can forever change a person’s life and livelihood. Instead of handling the multiple Grand Jury presentations in a careful, surgical-like way consistent with Due Process requirements and Department of Justice Guidelines, the government repeatedly and indiscriminately poured in three-plus years of factually inaccurate information via a single witness, who ultimately admitted to providing false information to the Grand Jury in this very case,” Lewis wrote.
He added that prosecutors failed to fully inform the Grand Jury about the complicated charges they were overseeing and they intentionally mislead the grand jury through a rushed process.
“The Grand Jury complied with the government’s request, reviewing the proposed 58-page Second Superseding Indictment, deliberating and voting ‘yes’ inside of two minutes,” Lewis wrote.
DEFENSE LIST OF ‘FACTUAL AND LEGAL IMPROPRIETIES’ DURING GRAND JURY PROCESS
• False and misleading testimony regarding the 17th Street ditch project.
• False and misleading testimony regarding the ½-Cent Sales Tax projects.
• False and misleading testimony about the possibilities to rebuild under a
design–build concept.
• False and misleading testimony about Grand Jury Exhibit 59.
• False and misleading testimony about the motorhome transaction.
• That a prior Grand Jury—upon hearing the same evidence—had found
sufficient probable cause to indict.
• That others involved in the case had admitted guilt and were cooperating
without an instruction that a guilty plea and convictions of other individuals
is not evidence of guilt of the accused.
• Improper and inflammatory remarks by the prosecutor that was unsupported
by any evidence or testimony.
• Improper and prejudicial testimony regarding attorney’s fees.
• Improper and prejudicial testimony regarding political platforms and political
goals.
• An improper inference that all of Finch’s business in Lynn Haven over 40
years in the amount of $56M was fraudulent.
• The prosecutors would “ ” provide instructions on the law.
• That honest services law was “ .”
• A two-sentence, erroneous instruction regarding the elements for criminal
conspiracy.
Case 5:20-cr-00028-MW-MJF Document 272 Filed 04/27/22 Page 58 of 73
59
• A single witness, who admits to providing inaccurate information to a prior
Grand Jury.
• A single summary witnesses with no other substantive witness.
• An agent-prepared timeline that is false and misleading.
• A slanted, inaccurate way of providing exculpatory information.
• Other violations, large and small.
The FBI agent overseeing the case also used former prosecutor Greg Wilson, who was convicted of introducing contraband at the Bay County Jail, to spy on the defendants and their attorney in violation of their constitutional rights, Lewis wrote.
FBI Agent Larry Borghini denied this allegation under oath during the evidentiary hearing in April. Lewis said text messages between Borghini and Wilson show he lied on the stand.
“With all due respect, Agent Borghini’s April 6, 2022, testimony was fabricated. It was demonstrably false,” Lewis wrote. “His testimony is simply not credible. He has provided false information before the Grand Juries and again before this Court at the April 6, 2022, evidentiary hearing.”
Lewis also took aim at the Bay County Sheriff’s Office accusing a high-ranking investigator of have an improper relationship with Derwin White, the former co-owner of GAC Construction. White was a target of investigators in the case but died in April of last year.
During the three-day hearing White’s name came up several times and he was accused of criminal activity.
In a new wrinkle, Wednesday’s filing revealed that Finch and White cooperated on the criminal case.
“Finch also had a joint-defense agreement with Derwin White prior to White’s passing,” Lewis wrote.
This revelation was necessary because prosecutors countered the idea that Wilson was spying on Finch by noting that Wilson worked in an office with White and coincidentally happened to be there while Finch and White reviewed the evidence in the case. Prosecutors went on to say that White attempted to tamper with witnesses.
The “joint–defense privilege” extends the attorney-client privilege to communications between parties and their attorneys who have a common legal interest with respect to the communication,” Lewis wrote.
Lewis also took aim at Chris Forehand, an engineer for the city. Forehand was the original owner of the now-infamous RV that prosecutors allege Finch obtained and then gave to Margo Anderson. However, he was much more than that, Lewis wrote.
“Forehand’s involvement in the multiple indictments permeate every aspect of the case,” Lewis wrote. “He is referenced in multiple reports and FBI 302s. He was involved in WorldClaim, ECS, the hurricane debris pick up, the design-build projects, the 17th Street ditch project, and the ½-Cent sales tax allegations.”
Forehand is “essential to the WorldClaim conspiracy, participating in kickbacks and cash payments to public officials, and bribing former City Manager Michael White to award a FEMA monitoring contract to Tetra Tech,” Lewis wrote. “Tetra Tech is a California-based consulting and engineering firm that was retained by the City of Lynn Haven to provide monitoring services following Hurricane Michael. To date, Tetra Tech has received over $5 million in fees from Lynn Haven, after former City Manager Michael White awarded Tetra Tech with the FEMA monitoring contract in 2019.
“Forehand is now ‘Senior Management’ for Tetra Tech.”
But while others have faced multiple criminal charges in this case, and Anderson and Finch are in the midst of fending off their charges Forehand has been offered immunity from prosecutors.
Lewis added that the defense had hoped to make Forehand testify during the evidentiary hearing but was told by his attorney that he would answer no questions and instead invoke his Fifth Amendment right against self-incrimination and remain silent.
Finch and Anderson’s arguments have been successful so far in getting several charges thrown out and forcing prosecutors to seek a new indictment in the case.
However, prosecutors have already gotten guilty pleas from former City Manager Michael White, former Community Services Director David Horton, former City Attorney Adam Albritton, business owner David White, David White’s bookkeeper Shannon Rodriguez, and business owner Joshua Anderson. Also, former city commissioner Antonious Barnes pleaded guilty in a separate case and is expected to testify that Finch bribed him.
The filing from the defense lays out a different scenario.
“In 2017, Barnes’ insurance business needed a small business loan. Rather than going to a bank, Barnes asked his longtime friend for a business loan—as friends often do. Finch agreed. Over the course of several months, Finch wrote his lifelong friend several checks to Barnes’ business account, writing “loan” in the memo section,” the filing states. “It was open and notorious, and documented. Had Finch wanted to “bribe” his childhood friend, he could have easily given him cash. He did not. And he never denied extending the loan. … It was a small business loan—nothing more.”
It remains unclear if Finch and Anderson will get a chance to tell their side of the story to a trial jury. Prosecutors are expected to file a response to this motion next month. Judge Walker could rule, and possibly throw out the case in late May.
However, if he finds that the case can move forward a trial could be on the docket for this summer.
