Defendant James Finch filed the list of “bad actors” and “bad acts” as federal Judge Mark Walker considers sanctions against the lead prosecutor, two lead investigators, and three Lynn Haven officials. See the court filing here: Bad Actors and Bad Acts Court Filing
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
Case No. 5:20-CR-28-MW/MJF
UNITED STATES OF AMERICA
v.
JAMES D. FINCH,
Defendant.
/
DEFENDANT FINCH’S POST-HEARING SUPPLEMENT IDENTIFYING SPECIFIC RELIEF SOUGHT
The United States Supreme Court has made clear that “the Government should turn square corners in dealing with the people.” Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 61 n.13 (1984) (citation and internal quotation marks omitted). The government has not done so here. Instead, it has cut corners. Indeed, it has cut them so aggressively and irresponsibly that the resulting damage to the defendants’ Constitutional rights cannot be undone.
Based on the extraordinary history of this case, including Defendant Finch’s motions and replies and the Court’s Orders, we respectfully maintain our position that dismissal of the Third Superseding Indictment against Defendant Finch with prejudice is the only appropriate remedy. As instructed by the Court, the following submission will identify the “bad acts, [] the bad actor[s], and . . . the alternative
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sanctions we propose in lieu of dismissal if [the Court does not] find dismissal is appropriate.” ECF No. 407, Hr’g Tr. 434:7-9, Dec. 13, 2022.
I. Bad Actors.
The record evidence in this case demonstrates that the following individuals have exhibited a pattern and practice of misconduct throughout this case.
• Assistant United States Attorney (“AUSA”) Stephen M. Kunz (“Kunz”).1
• Former FBI Special Agent Lawrence Borghini (“Borghini”).2
• Bay County Sheriff’s Office Major Jimmy Stanford (“Stanford”).3
1 On Saturday, December 17, 2022, the defense received confirmation from the
government that AUSA Kunz will be retiring from the office effective December
31, 2022. The defense learned of AUSA Kunz’ departure shortly after the Court both
ordered a hearing on the allegations of the Barnes’ threats/coercion during plea
discussions and directing the defense to submit a list of “bad actors.” We have cited
a documented history of prior instances of serious misconduct that in and of itself is
shocking. See United States v. Aisenberg, 247 F. Supp. 2d 1272, 1324 (describing
[Mr. Kunz’s] conduct before the grand jury as “misdirected” and “overzealous” then
admonishing and ultimately sanctioning the government for recklessly pursuing
prosecution based on fabricated statements and speculative grounds), rev’d on other
grounds, 358 F.3d 1327 (11th Cir. 2004); see also Clayton v. Willis, 489 So. 2d 813,
815 (Fla. 5th DCA 1986) (admonishing “[Kunz’s] use of the indictment process” as
grossly irresponsible, and comparing his use of the Grand Jury to “giving a small
boy a loaded pistol without instruction as to when and how it is to be used.”).
2 Mid-case, shortly after the government filed its 80-page response admitting that Borghini’s sworn testimony to a Grand Jury was false, Borghini disclosed his retirement. ECF No. 242 at 14 n.11.
3 Sheriff Tommy Ford, AUSA Kunz, and Borghini knew from the beginning that
Stanford had a close personal and financial relationship with Derwin White, an
apparent target of the investigation. Finch Ex. 5 (Mar. 31, 2022), Tr. 4:14-21 (AUSA
Kunz to Grand Jury: “Our ultimate goal is . . . Derwin White [and] . . . James Finch
2
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• Lynn Haven Police Chief Ricky Ramie.
• Former Lynn Haven City Manager Michael White.
• Current Lynn Haven City Manager Vickie Gainer.
II. Bad Acts.4
A. Multiple Flawed Indictments.
In the last two years, the government has returned multiple legally invalid Indictments knowing that they violate Court orders and various rules of law. The government has disregarded Court Orders requiring errors to be corrected and strict adherence to Due Process and fairness.5
. . . that’s where we’re going here.”). Despite this knowledge, Major Stanford
participated in at least 38 interviews between April 4, 2019, and November 12, 2021.
Finch Ex. 79 (Dec. 12, 2022). Stanford’s participation in the investigation suddenly
stopped only after the Court ordered the government to produce unredacted 302s
revealing the extent of Stanford’s corruption to the defense team. ECF No. 211
(ordering the production of unredacted reports by November 12, 2022). See also
Finch Ex. 13 (Dec. 12, 2022) (Michael White’s Mar. 10, 2022, 302 indicating it was
“common knowledge” Stanford is corrupt); Finch Ex. 38 (Dec. 12, 2022) (Allen
Byrd’s Oct. 17, 2022, 302 describing Stanford as “once a crook, always a crook”).
4 Finch’s list of “bad acts” is by no means exhaustive; it does give a fair account of
the extraordinary, repeat misconduct and law enforcement corruption that has caused
the Court to describe the government’s conduct as “less than laudable,” ECF No.
294 at 12 “reckless, careless, and unprofessional,” id. at 38,” and “reckless [and]
haphazard.” Id. at 45.
5 Compare the conspiracy allegations within Count 1 of the Third Superseding
Indictment, ECF No. 355 12(b) (alleging that “Barnes performed actions . . . for
the benefit of Finch, including . . . ” (emphasis added)); 12(d) (alleging that
“Anderson performed actions . . . for the benefit of Finch, including voting . . . and
pressuring and advising City officials to take action favorable to Finch on certain
3
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• On August 8, 2020, the government returned a 64-Count Indictment, ECF
No. 1, signed by AUSA Kunz containing:
o An “ambiguous and, at best, . . . misstatement of law.” ECF No.
60 at 4.
o Several “multiplicitous and insufficient counts.” ECF No. 60 at
21.
• On March 16, 2021, the government returned a 43-count Superseding
Indictment, ECF No. 64, against Margo Anderson, James Finch, and others, signed by AUSA Kunz and others, containing:
o A wire fraud count that clearly fell outside the statute of
limitations. ECF No. 121.
o A duplicitous conspiracy count. ECF No. 185 at 6-7.
o Legally insufficient counts. ECF No. 185 at 16-17.
o Ambiguities requiring a Bill of Particulars. ECF No. 185 at 21.
• On November 17, 2021, the government returned a 26-count Second
Superseding Indictment, signed by AUSA Kunz and others, ECF No. 214,
against Margo Anderson and James Finch, containing the same duplicitous
conspiracy count in spite of the Court’s prior orders. ECF Nos. 293, 323.
• On October 18, 2022, the government returned a 5-count Third
Superseding Indictment, ECF No. 355, against Margo Anderson and James Finch, containing the same duplicitous conspiracy count.
B. Grand Jury Misconduct.
At this juncture, the Court is intimately familiar with Defendants’ motions,
arguments, and evidence presented. Accordingly, we will not go into detail about
matters, including . . .” (emphasis added)), with the duplicitous conspiracy count within the Second Superseding Indictment, ECF No. 214 125 (charging a conspiracy to commit honest services wire fraud related to “Finch’s business interest, [] including . . .” (emphasis added)).
4
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every instance that Borghini and AUSA Kunz provided misleading and false information to multiple Grand Juries.6
• Borghini’s false testimony regarding the March 20, 2017, promissory note
related to the 17th Street Project.7
• Borghini’s false testimony regarding the post-Hurricane Michael city
rebuild projects. ECF No. 294 at 20-22.
6 AUSA Kunz orchestrated the presentations, and Borghini was the government’s
sole witness to testify before the Grand Juries that returned the first three
indictments. The prosecutors’ questions were extraordinarily leading and
suggestive. They would have never been allowed before a trial jury. And worse,
the prosecutor and agent took the “worst possible spin on the facts” See ECF No.
175, Hr’g Tr. 9:14, June 30, 2021 (suggesting that the Court cannot understand how
the government is taking “the worst possible spin on the facts that could be made”).
In most instances, no legal instructions were given. Nor were curative instructions
given admonishing the Grand Jury on how to consider or not consider certain
reckless, inflammatory information.
7 The August 2020 original indictment included a specific allegation that Defendant
Anderson signed a promissory note for 30 years of payments to Defendant Finch’s
company and that this was 10 years more than the City Commission had approved.
ECF No. 1 43. The public record, however, clearly indicated that the City
Commission had approved the increase on February 28, 2017. Finch Ex. 14 (Mar.
31, 2022). The same public presentations were made during various Commission
meetings relating to the ½ Cent Sales Tax, the 17th Street Ditch Project, and the so-
called Design Build Project. Each presentation was recorded. See Anderson Ex.
161 (Mar. 31, 2022) (Michael White represented to the Commission on Sept. 12,
2018, that he asked Finch to include the Stormwater Master Plan into the 17th Street
Ditch project); ECF No. 266, Hr’g Tr. 77-79, Apr. 4, 2022. Following Michael
White’s proposal and recommendation to the Commission, Commissioner Rodney
Friend states: “I would not like to see the city to take on addition debt. That being
said, I recognize cheap money when I see it. This is an amazing rate and that’s why
we did it a long time ago . . . I don’t think we can pass up this particular offer at
2.55%.” Lynn Haven Commission Meeting, YouTube, 1:14:45 (Sept. 12, 2018),
https://www.youtube.com/watch?v=DWJtFWNiezs. To our knowledge, the
prosecutors never presented a single Commission meeting recording to any of the multiple Grand Juries.
5
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• Borghini and AUSA Kunz routine misstatements of fact regarding the
transfer of the motorhome between Finch and Lee Anderson.8
• Presenting and soliciting testimony about false and misleading Grand Jury
exhibits prepared by Borghini regarding Commissioner Barnes’ votes9 and
Anderson’s travel and expenses.10
• AUSA Kunz asked the same prejudicial question multiple times about
Finch that was “based on a factual premise not supported by evidence.”
ECF No. 280 at 140; ECF No. 294 at 35, 37.
• At the conclusion of the government’s presentation on November 16,
2021, in Pensacola, the government presented the Grand Jury with the
Second Superseding Indictment, a 58-page, 26-count indictment covering
six and a half years, alleging multiple complex transactions, involving
dozens of people, approximately 60 exhibits, permitting the Grand Jury to
deliberate a mere 120 seconds before asking the Grand Jury to vote to
return the government’s flawed charging document.11
8 Specifically, the prosecutor’s questions and agent’s testimony suggested that
Margo Anderson was part of the financial agreement and title transfer for the motor
home, and that her name appeared on title documents. See ECF No. 290, Hr’g Tr.
40-46, Apr. 6, 2022. The questions and testimony were false and misleading and
served as the basis for multiple counts. The Court ultimately concluded that it “could
not say the government’s misstatements [regarding the motorhome transaction] were
material.” ECF No. 294 at 24. The Court found that the “key” was not “who the
motorhome was legally titled to, but that Finch transferred the motorhome to
Anderson’s husband.” Id. (emphasis added). But, these same “misstatements”
were the basis for the government’s tortured false statement counts against Finch.
See ECF No. 63-65 (claiming the objective truth includes the “transfer of the
motorhome to Anderson and her husband” (emphasis added)); ECF No. 214 at 55-
57 (same). In short, as argued in open court, precision and detail matter. Here, the government has failed miserably.
9 ECF No. 274 at 45-48; ECF No. 294 at 34-35.
10 See generally ECF No. 407, Hr’g Tr. 315-21, Dec. 13, 2022.
11 ECF No. 291, Hr’g Tr. 139:3-4, Mar. 31, 2022 (confirming that the Second Superseding Indictment was returned within 120 seconds).
6
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C. The Government’s Other Reckless, Careless, and Unprofessional
Conduct.
Outside the Grand Jury room, the government has committed additional “bad
acts” that warrant a finding of recklessness and vindictiveness, which in turn warrant
sanctions.
First, when it was apparent that AUSA Kunz was seeking the return of an
indictment against the 71-year-old Finch, we attempted to discuss voluntary
surrender and conditions of release. During an in-person meeting on January 12,
2021, AUSA Kunz represented to counsel that “the FBI determines surrender,”12
rejecting our request for an agreed upon self-surrender. Following the return of the
Superseding Indictment, Borghini called Defendant Finch directly despite Finch
being represented by counsel. Finch was in the Vezina law office (where he had
been for several days) waiting to surrender to the Court. Bypassing counsel,
speaking directly to Finch, Borghini expressed extreme anger due to the
12 The government cannot seriously dispute that this statement is blatantly false and
misleading. Clearly, the United States Attorney’s Office has the authority to direct
the voluntary surrender and recommend bond conditions of an indicted individual
despite AUSA Kunz’s representation that voluntary surrender was somehow a
decision made only by the FBI. In truth, it is routine and customary across the nation
to allow represented nonviolent individuals to self-surrender, especially ones who
have been voluntarily interviewed by the FBI without counsel, provided voluminous
records pursuant to a Grand Jury subpoena, and maintained regular contact with the
prosecutors through counsel.
7
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government’s not having the opportunity to publicly arrest Finch.13 Finch was in
the presence of Mr. Vezina, who overheard Borghini’s over-the-phone reaction.
The failure to arrest Finch at his home in front of his family and the media did not dimmish the government’s desire to recklessly publicize the case, risking taint to a potential jury pool and causing extreme damage to Finch’s company. Indeed, evidence demonstrates that the government illegally employed a third-party media group to orchestrate the announcement of the Indictment, the Superseding Indictment, and the arrests. The outside media company was further tasked with drafting tweets about the case and with drafting former United States Attorney Larry Keefe’s op-ed on the Office’s newly created Public Trust Unit.14 ECF No. 228 at n.23; see also Finch DX 78 (Dec. 12, 2022) (containing the $429,000 contract between Sachs Media Group and the United States Attorney’s Office for the Northern District of Florida, invoices for February 2020-February 2021, and
13 The government admitted that it planned and desired to publicly arrest Finch. See ECF No. 395 at 44.
14 The government has repeatedly made statements in press conferences violating
both the letter and spirit of the Justice Manual. Compare Larry Keefe, One year in:
U.S. Attorney’s Public Trust Unit is protecting our way of life, Tallahassee Democrat
(Sep. 19, 2020) (https://www.tallahassee.com/story/opinion/2020/09/19/u-s-
attorneys-public-trust-unit-protecting-our-way-life/3478643001) (stating that his Public Trust Unit has succeeded in “prosecut[ing] … Lynn Haven Mayor Margo Anderson” without indicating that the charges were pending and she is presumed innocent), with Justice Manual § 1-7.500 (“A news release issued before a finding of guilt should state that the charge is merely an accusation, and the defendant is presumed innocent until proven guilty.”).
8
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Detailed Time Reports during August 2022 referencing the “Panama City media list,” the “Panama City event,” and “facilitate[ing] media push for press conference” on August 18, 2020.).15 These actions were taken in spite of federal law making clear that “Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose.” 5 U.S.C. § 3107.
Yet another example of reckless, improper behavior, the government has
repeatedly attempted to manufacture a conflict of interest regarding Anderson’s
voluntarily elected defense counsel of choice.16 See ECF Nos. 78, 97, 98, 106, 107.
Months after the Court conducted a thorough colloquy with Mrs. Anderson, the
government filed a Motion for Rule 17(c) attorney’s fees subpoenas, which this
Court denied as an impermissible “fishing expedition.” ECF No. 173.
15 Finch acquired these records pursuant to a FOIA request to the Executive Office
for United States Attorneys (“EOUSA”) that was submitted on July 21, 2021. On
September 17, 2021, EOUSA’s FOIA division responded, indicating that they had
located 30,693 pages of documents responsive to our requests. To date, EOUSA,
the Department of Justice arm charged with managing all 93 United States
Attorneys’ Offices around the country, https://www.justice.gov/usao/eousa, has
produced a mere 546 pages.
16 AUSA Kunz implemented a similar tactic when recklessly pursuing prosecution
based on speculative grounds against the Aisenbergs. See Aisenberg. 247 F. Supp.
2d at 1281-82 (denying AUSA Kunz’s request to disqualify defense counsel by
alleging an irresolvable conflict of interest and claiming that the defendant’s should
have inconsistent defenses and that counsel may become a witness at trial).
9
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In short, the government’s recklessness, carelessness, and illegal media campaign is evidence that the sovereign disregarded its legal and ethical obligations. Winning was the goal, all at the expense of justice.
D. Sixth Amendment Violations.
Borghini and AUSA Kunz employed former Assistant State Attorney Greg
Wilson as a government informant to invade the defense camp. Contrary to
Borghini’s sworn testimony and the government’s representations, the Court had
“little trouble concluding that Wilson acted as a government agent.” ECF No. 294
at 41.
At a July 2020 meeting with Borghini and AUSA Kunz, Wilson signed an immunity agreement, stating that he would provide information about public corruption. ECF No. 266, Hr’g Tr. 21-22, Apr. 4, 2022. To date, the government has not provided the defense with a copy of Wilson’s immunity agreement, which is just one of many important examples of continued repeat discovery violations including Brady violations listed below.
Clearly, the purpose was to initiate contact with Finch and other represented
parties to discuss case-related issues all in violation of the Sixth Amendment. Id. at
51:23-24 (“I was asked to find out the contents [of the box prominently labeled
“Attorney-Client Privilege”] and then later the location”); id. at 27: 17-20 (Q: “Did
you know at the time that Derwin White was represented by an attorney . . . ?
10
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[Wilson]: I did.”); id. at 51:5-10 (Wilson: “I know there were occasions that I was
directed by Mr. Borghini to specifically find out certain information that I did not
know. Q: And did that include meeting with a represented party and questioning
them? [Wilson]: On the two occasions I’m thinking of, one of them was, yes.”)
Even more egregious is the fact that Borghini testified under oath under
questioning by AUSA Kunz that he never instructed Wilson to do anything with
respect to obtaining any information or evidence whatsoever. ECF No. 290, Hr’g
Tr. 71:3-6, Apr. 6, 2022 (Q: “And after each of these times you’d met with [Wilson]
you never told him, Listen, go out and get more information and call me back, did
you? [Borghini]: No.”); 74:22-25 (Q: “[D]id you tell Mr. Wilson to go out and get
more information, or did you give any instructions about working for you or giving
you information? [Borghini]: I did not.”); 78:7 (Borghini: “I’ve never directed Greg
Wilson to do anything.”); 80:14-16 (Q: “[A]fter May 10th of 2021, did you hear
from Mr. Wilson again before August 26th, 2021? [Borghini]: No.”); 82:11-13 (Q:
“[P]rior to this date of August 26, were you aware of any box marked “attorney-
client communications or privilege” . . . being in GAC? [Borghini]: No.”); 152:17-
19 (Q: “And you never told Mr. Wilson to do anything with respect to obtaining any
evidence whatsoever; is that correct? [Borghini]: That is correct.”). Like his
11
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testimony before multiple Grand Juries, Borghini’s sworn testimony to this Court was demonstrably false. See Finch Ex. 90, (Mar. 31, 2022).17
E. Repeat Violations of the Court’s Discovery Orders.
The record is replete with the government’s multiple discovery violations
including but not limited to late productions, improper redactions, and withholding
Brady material until the defense discovered the government’s misconduct. After the
violations were brought to light, the government regularly blamed others, including
the defense, and denied responsibility. For example, the prosecutors’ excuses ranged
from claiming all Brady material had been provided as of March 31, 2021,18 to the
defense had not requested Brady material and not been specific enough with their
17 Dismissal is appropriate for another, equally compelling reason: to punish the
prosecution and thereby deter prosecutorial misconduct and protect the integrity of
the judicial process. United States v. DiBernardo, 775 F.2d 1470, 1476-77 (11th
Cir. 1985) (“Federal courts may exercise their supervisory powers to remedy
violations of recognized rights, to protect the integrity of the federal courts, and to
deter illegal conduct by government officials.”); United States v. Pabian, 704 F.2d
1533, 1536 (11th Cir. 1983) (same). The need for deterrence is heightened here
because the conduct in this case does not consist of a single isolated incident. In
fact, in a recent decision in the Southern District of Florida, U.S. District Judge
Gayles ordered a new trial, admonishing federal prosecutors for instructing a
cooperating witness to spy on his co-defendants — and then lying to the court to
cover up misconduct he said violated the defendants constitutional right to a fair
trial. See United States v. Pisoni, Case No. 15-CR-20339, ECF No. 767 (S.D. Fla.).
18 ECF No. 274 at 8-9; Finch Ex. 16 (Mar. 31, 2021).
See the court filing here: Bad Actors and Bad Acts Court Filing
