Government Beats Back Motion to Dismiss

In the latest motion filed in the Wone case, the government responded in opposition to the defense’s joint motion to dismiss counts one (conspiracy to obstruct justice) and two (obstruction of justice) of the indictment with direct and deliberate language that at times lays bare the “…Defendants’ contorted legal analysis.”


"Conspiracy" by Edward Biberman

The heart of the defendants’ argument to dismiss counts one and two is that obstruction is not actionable – meaning it can’t be prosecuted in court of law – because the alleged acts of obstruction occurred before Mr. Zaborsky’s 9-1-1 call, and since no “official proceeding” was in process at that time, which must be in place first, no obstruction occurred.

One might think that after the 9-1-1 call was placed and MPD arrived, that those events would qualify as actionable obstruction items.  But no, not at least according to Team Trouple.  The events that happened after the 9-1-1 call aren’t actionable either because the obstruction statute does not criminalize “false statements to the police.”

Moreover, the defense claims that Joe Price’s misrepresentation about who had access to Swann Street to Kathy Wone is not actionable because she has no relation to the government’s investigation into her husband’s murder.

Are the defendants trying have the legal equivalent of flipping a coin and saying, “Heads I win, tails you lose?”

Sure looks that way.

In it’s reply the government demonstrates why alleged acts both before and after the 9-1-1 call are actionable.

In a true “gotcha” moment the government says that the defense leaves the 9-1-1 call itself unchallenged.  Since this was the the house-mate’s first communication of the “intruder” theory, this counts as an actionable obstruction of justice, and because only one actionable item is needed then count two automatically survives.  Ouch.

The motion also reveals new information about how Joe Price sought to impede the government’s investigation when he did not tell Robert’s widow about who all had access to the 1509 Swann Street; namely his brother, Michael Price.

The defense argues that Price’s misrepresentation to Kathy Wone about this information does not constitute obstruction because she had no “…official role in the investigation.”

Acting U.S. Attorney Channing Phillips, writing for the government, wastes no times spelling out that Mrs. Wone is one of the prosecution”s primary witnesses and sources of information throughout the course of the murder investigation.

Revealed for the first time publicly, the government states that they intend to “…present evidence at trial establishing that Defendant Price was seeking, through intermediaries, information about what Mrs. Wone had told the police when she spoke with them about the murder of her husband.”

With information like this it sure seems like Joe Price spent more time trying to control the government’s investigation into the murder instead of trying to locate the “intruder” in the early days after the murder.

The government is particularly hard on Price, saying that his motive here was to falsely portray to Mrs. Wone that he and his Swann Street house mates were fully cooperating with the police’s investigation and that he sought to undermine Mrs. Wone’s confidence in the Government’s efforts to locate the murderer(s).

posted by David

47 comments for “Dismissive

  1. AnnaZed
    12/18/2009 at 1:20 PM

    Wow, just wow.

    What I am wondering is if Joe, Dylan and Victor have simply decided that doing five years for obstruction is simply preferable to a much longer potential sentence for murder and accessory to murder. I wonder if they simply view this obstruction trial as unwinnable (I would) and are taking what they conclude is the only road to the shortest possible incarceration. In that case this may be all that the government and Mrs. Wone will be able to get (besides the civil case).

    Disgusting, but a possibility.

    I am curious also about the government’s continued focus on Michael Price. He has not been charged. It seems odd.

  2. CDinDC
    12/18/2009 at 2:11 PM

    I’d love to know who these “intermediaries” are, and if they are voluntarily turning state’s witnesses.

    Seem any intermediary would probably be another W&M alum. Has Joe Price tried to plant a mole in Kathy Wone’s life?

    • AnnaZed
      12/19/2009 at 1:42 PM

      Oh to be a fly on those particular walls. I too wonder if some former mutual friend found Joe’s probings peculiar and intrusive and felt that the authorities should be notified. If so, well done.

      The main thing Joe would want to know from Mrs. Wone is, of course, what Robert told her about his planned stay at Swann St., and then later he would want to know her mind as it dawned on her that he was lying to her.

      • Clio
        12/20/2009 at 4:44 PM

        Intermediaries? Plural. Fascinating.

        Could one of them be the enigmatic Lisa, of whom Dyl said that they were talking right before the murder? Or, was one of them Jeff Trammell, the well-connected W&M alum who vouched for Joe publicly and who received an alum award presented by Joe personally several months later?

        Ben, stop holding back; do tell!

        • Clio
          01/03/2010 at 11:16 PM

          More fodder for Craig’s List: Who were the intermediaries who Joe used to try to spin Kathy? Are they about to be indicted for obstruction, too?

  3. Bea
    12/18/2009 at 2:28 PM

    Maybe Ben is Joe’s mole?

    I hate when others do this, but I’m cutting and pasting from my post in the prior thread I left this morning:

    In reading today’s post, and the underlying motion, it seems the prosecution may be engaging in an interesting theory, namely to ’suggest’ that the ‘unknown intruder’ was Michael Price. Hey, the prosecution doesn’t need to prove WHO killed Robert in this case, so why not tickle the fancy, let the jury believe that if these three jackasses DIDN’T kill Robert then why not the useless idiot brother of Joe who later the same year burglarized the place? Will Joe be pissed enough to have a narcissistic need to respond? Methinks quite possibly.

    Even if Michael Price did not kill Robert Wone (and I don’t think he did), it’s quite an interesting way to get the defendants’ goats, that they were conspiring to protect the wayward Michael – and in doing so, either get the conviction or possibly force someone to ‘break’ – maybe even the hapless Michael? Interesting strategy!

    • Bea
      12/18/2009 at 2:30 PM

      On the same note – do we know WHY the burglary charges against Michael were dropped? ANY chance that Michael turned prosecution witness and mole? Michael, the pudgy, shorter, dumber version of his beloved big brother Joe – could resentment have led him to wear a wire??? Oh, now that’s a Christmas present!

      • BenFranklin
        12/18/2009 at 3:06 PM

        No Bea.

        • AnnaZed
          12/19/2009 at 12:27 PM

          Is that answer based on first -hand knowledge? If so, tell us then. What is Michael Price’s position?

      • former crackho
        12/18/2009 at 5:05 PM

        A very real possibility, Bea. Who knows what Joe did to Michael over the years. For some reason, my mind keeps going back to why Michael was often at Joe’s office. What was Joe making him do? What hold did he have over his little brother? Many siblings have a love/hate relationship. Especially brothers. Especially younger brothers who have an obnoxious jerk for an older brother. I don’t think it would be very hard for the prosecution to break Michael. Yes, Virginia, there is a Santa.

        • Bea
          12/18/2009 at 7:07 PM

          Considering that even Michael’s lover was bailed out by Joe and used Joe’s address (after a fall-out between Michael and the lover), my guess is that Joe paid a lot of Michael’s bills. And that Michael was forever being propped up by Joe (as in EyeCandyDVDs business). In return, Michael likely handled the unseemly drug purchases and things of that ilk – don’t forget that the prosecution early on claimed that Joe “distributed” illegal drugs, so maybe that was a Michael-side-business too.

          The botched robbery by Michael & Friend was likely to show the neighborhood ‘had problems’ (with Joe’s prior approval) but it does seem odd that the charges were dropped – why not have Michael in the jail cell and lean on him a lot? My view that he’s a weak link comes from speculation here, that he’s had no serious jobs, and just his persona from the video posted – but still, Virginia, it would be quite the Christmas present if Michael was an ace in the hole for the prosecution.

  4. BenFranklin
    12/18/2009 at 2:46 PM

    The obstruction case is not unwinnable–but it’s no better than a 50/50 shot. Even if the trial breaks in their favor, I would not want to try to find a jury of my peers in DC. Seriously–have you ever smelled a DC criminal jury? I’ve testified in a DC criminal court as witness & afterward moved as far away as possible. Terrifying!

    The government’s efforts have the foot prints of negative leverage more than winnable substance. They’re playing hardball but would be happy to dish up a deal if they could get the truth in exchange.

    No prosecutor-especially a family man– wants to spend 2-3 months in the courtroom on this one. If they make the government do the work the defendants who lose will do the maximum time.

    • Bea
      12/18/2009 at 4:22 PM

      “No prosecutor – especially a family man – wants to spend 2-3 months in the courtroom on this one.”

      I have no idea what this means. I have been in the jury pool in DC, LA and other places and the DC jury doesn’t “smell” worse than any other place (as a lawyer, though, I’ve never been picked to sit on a jury).

      The only thing I agree with Ben about is that the prosecution would be happy to make a deal – with one defendant – the one who didn’t do the killing (likely Victor). The problem seems to be that Victor’s testimony would likely up the charges to murder, and Victor apparently doesn’t have the spine necessary to do the right thing.

      Ben, what is Joe likely to do in this regard – if as you say, that Dylan is the killer, is true, why not cut a deal for himself and for Victor? Isn’t that the W&M way since the victim was W&M too?

      I am fascinated by the prosecution’s tactics here – or what appear to be the tactics based solely on one motion. Will Michael Price be the shadowy figure OUTSIDE of the courtroom? The boys likely hadn’t figured that the ‘unknown’ part of ‘unknown intruder’ may very well bite them in the ass.

      • BenFranklin
        12/18/2009 at 5:30 PM

        Bea–I think we’ll see two deals–some low bows followed by some heavy lifting before a new judge, but not before the vernal equinox.

        When the spots wash out, we’ll see Price & Zaborsky together & Ward in a diminished capacity. Truth & justice.

    • AnnaZed
      12/18/2009 at 7:22 PM

      If I did not know better I would think that you are trying to say something about the potential racial make-up of a DC jury. I am pretty sure that I have never seen or heard of anyone complain about how a jury pool “smells” before. Are you saying that they would be working class, so somehow to your mind “unwashed”? That’s just bizarre.

      • Bea
        12/18/2009 at 7:36 PM

        AZ, that was my thought too. But Ben’s all over the place today (as a Joe Price apologist – that’s not new) and seems bent on being purposely 0btuse. I’d asked him to explain a comment and got more double-talk in response (“we’ll see two deals- some low bows followed by some heavy lifting before a new judge, but not before the vernal equinox. . .).

  5. former crackho
    12/18/2009 at 4:58 PM

    I do believe Michael played a big hand in getting rid of evidence.

    • Bea
      12/18/2009 at 5:03 PM

      I waffle between Sarah and Michael as to getting rid of evidence – certainly Joe had him on the phone and playing gopher during the night of interrogation. But if Michael was at Swann that night, in whatever capacity, it complicates things for the defendants – the prosecution doesn’t need to prove who did the killing, so it really does improve their case – this absent and unsavory brother.

    • BenFranklin
      12/18/2009 at 5:40 PM

      Hey FCH,
      Evidence disposal once vexed me, too. Turns out it may have been easier than pie–simply dumped in a bin down the street, or as AZ theorized, stashed downstairs in the unit for easy later disposal (blood on the door frame going downstairs inside implies this, if it was Wone’s blood).

      If there was a real, concerted, haul-away effort by an inside accomplice why the hell didn’t they dump all that BDSM crap?

      It’s exculpatory that none of that stuff vanished.

      • CDinDC
        12/18/2009 at 6:26 PM

        Ben Franklin says: “If there was a real, concerted, haul-away effort by an inside accomplice why the hell didn’t they dump all that BDSM crap?”

        If you’re gonna go there, why didn’t they just dispose of Robert’s body all together?

        They didn’t dump the BDSM crap. End of story. Again, it is what it is.

      • former crackho
        12/18/2009 at 6:33 PM

        There are few things that stand between a “master” (ha) and his BDSM stuff. Apparently murder isn’t one of them.

      • Mike
        12/19/2009 at 3:12 PM

        “…real, concerted, haul-away effort by an inside accomplice”?

        “Concerted” means more than one party acting in concert. Just mentioning it because Ben calls himself an “elitist.” Taken with everything else, it seems the Elite has seen far better days.

        • Clio
          12/20/2009 at 5:27 PM

          If Ben truly were an elitist, then he would not be vouching for these social climbers and poseurs — who have been made much more marginal by their own lack of sincerity, probity, and sobriety.

          Virginia, there is a Santa Claus, and, yes, there are other, better-suited lavender tribunes “out” there for you than these Three Stooges!

  6. Craig
    12/18/2009 at 6:13 PM

    Ben – How do we know that other items from Dylan Ward’s S&M toy chest were not spirited away under cover of that August night?

    One ecstacy pill found? Does that tell us other drugs may have vanished too and that single remaining tab was overlooked by the threesome? Others could’ve been flushed I guess.

    For someone to have stashed anything in a dumpster, they would have to have known the area pretty well; they are not on every block, but behind commercial establishments and apartment buildings (and they’re usually locked too).

    The closest dumpster may have been on 14th Street, not far from where Michael Price (and Phelps Collins) tried to fence the “stolen property,” also very close to where he (MP) works now.

    • CDinDC
      12/18/2009 at 6:31 PM

      Craig says: “How do we know that other items from Dylan Ward’s S&M toy chest were not spirited away under cover of that August night? ”

      Good point, Craig.

      Re dumpsters, another good point. However, I definitely believe they may have dumped any towels, etc in a nearby trashcan, which are plentiful. It doesn’t have to be a dumpster. The police don’t immediately start a block to block search for evidence immediately after a murder. Especially, if the murder is supposedly due to a break-in.

      • former crackho
        12/18/2009 at 6:37 PM

        Perhaps Michael was close by and Joe phoned him and he grabed a bag of stuff and got rid of it. I’m sure he spent a lot of time downtown. I don’t think they would simply dispose of things in a nearby trash can, but hell, what do I know. I never murdered anyone. What day of the week was the murder? Was there a trash pickup the next day?

        • BenFranklin
          12/18/2009 at 8:06 PM

          Price’s phone records were successfully seized by warrants, so calls to his brother should be easy to check (unless he was already in the house.)

          The toy box inventory seemed uncensored & even made me blush.

          If anything in the toy box/dungeon was disposed of why not everything? Taking it at face value, it suggests to me the sexual assault allegations caught them all by surprise.

          I would have certainly chucked the urine funnel head gear. Ever seen one of those? Scary….

          • David
            12/18/2009 at 8:49 PM


            Why not chuck everything? Good question with a one word answer — Time. They simply had to make strategic decisions about what would be removed in the least amount of time.


            • BenFranklin
              12/18/2009 at 11:27 PM

              Do we know if the defendants had unescorted access to their house at anytime after the the murder but before the the search warrants were executed?

              • David
                12/19/2009 at 11:08 AM


                You asked the question, you do the research. We aren’t all here just to feed you information so you can think on high about this case.

                Nobody is preventing you from doing the research necessary to answer your question.


                • BenFranklin
                  12/19/2009 at 1:20 PM

                  Somebody must think about this case from a different perspective.

                  This issue is huge–but I’m not sure how I will do the research from my altitude.

                  It strikes at the core of the sexual assault & evidence disposal allegations–but I don’t want to go there before Christmas. First some egg nog & mistletoe.


                  • AnnaZed
                    12/19/2009 at 1:34 PM


                  • Bea
                    12/19/2009 at 7:30 PM

                    Ben, I think the point is that we’ve all sifted through the documents and info provided on this site – it can be quite an endeavor. If one of us “remembers” to answer you, we do, but if not, you’re as good a candidate to do the research as the rest of us. No matter your altitude (whatever that means). Best-

                    • She did it
                      12/19/2009 at 8:52 PM

                      i thought altitude was a reference to ben being high as a kite – as was appearent to me in reading several of his pro-defendant posts.

            • BenFranklin
              12/19/2009 at 10:34 AM

              Wow. I asked such a simple question, below. Twice. Do I need to ask it again? Or do we really not know?

              You can see where I’m going with it & seems no one wants to touch it.


          • BenFranklin
            12/18/2009 at 9:15 PM

            Do we know if the defendants had unescorted access to their house at anytime after the the murder but before the the search warrants were executed?

        • Nelly
          12/18/2009 at 10:45 PM

          Wasn’t it a Wednesday night?

      • David
        12/19/2009 at 11:10 AM


        The toys that were spirited away were probably those involved in “transgressions” that evening just for the purpose of removing DNA evidence. The others weren’t a priority that evening. Just a guess.


        • Clio
          12/20/2009 at 6:50 PM

          Dyl’s DVD copy of “Manwhore” from 2001, included. Again, thank the Goddess, that Lynn and the jury will be spared a screening of that “film.”

  7. Clio
    12/20/2009 at 5:15 PM

    The language in the above document about Joe is appropriate, if harsh: “purposefully concealed” and “particularly manipulative.” I find it intriguing that the lies to Kathy were made in November 2007, after the W&M Homecoming Gala and after the “burglary.” When the “burglary” did occur, readers may recall, Joe and Victor were on vacation, perhaps in Miami. Ward “discovered” that the “burglary” had happened when he went to pick up their mail. Editors, we do need a new posting on the “burglary” in light of the prosecution’s latest rebuttal.

    BTW, Lambda Rising in Rehoboth Beach is still open and will remain so until the 31st of this month. Everything is on sale!

    P.S.S. Editors, I loved your choice of picture with this piece. It captures the tortured (horrible pun intended!), ugly nature of conspiracy.

    P.S.S.S. Another guess for one of Joe’s intermediaries: Adjunct Professor Jule Gardner Banville, now safely in Montana. Just a thought.

    • Clio
      12/20/2009 at 6:01 PM

      November 2007 == why that month and why that year for the “particularly manipulative” lies? The “burglary” had happened a year earlier, and the charges for the “burglary” had been/or were about to be dropped. It would be a year later in October 2008 that Dyl would be first indicted.

      • Bea
        12/21/2009 at 1:52 AM

        Excellent point. Why indeed.

        • Clio
          12/22/2009 at 12:32 AM

          Maybe, November 2007, to Joe, was an appropriate time for a charm offensive to Kathy because: (1) his “high” hopes of the spring for the investigation to lead away from him had been dispelled; the “burglary” no longer eclipsed the murder, (2) he and his comrades blew a PR moment by not showing up to the Holder news conference in August 2007, and (3) Dyl had left or was about to leave for Florida, where, of course, the main core couple had decided to live/flee eventually as well; a move to Fla. demanded muddying the waters even more in DC to preclude any indictments that would ruin their early retirement plans.

          The unsavory details of the affidavits were not yet publicly available, so Joe probably thought that he could still do “damage control” with Kathy, as late as November 2007. Delusional!

          • Clio
            12/27/2009 at 2:01 PM

            I keep asking myself: Why did Joe make these entreaties in November 2007 of all times? Michael’s probable access to the Swann was known by then, given the publicity around the “burglary” and its obvious ruse factor. So, why would Joe lie about that detail as late as November 2007? Unless, Michael was at the home on 8/2/06 and took out the trash just before midnight.

            • AnnaZed
              12/27/2009 at 2:06 PM

              I am not so sure about a conspiracy of four that includes unstable and and more to the point un- rich Michael. I don’t see how the center could hold on such a thing.

  8. Nelly
    01/03/2010 at 9:19 PM

    Hold up. The goverment’s brief is wrong as to the dates, IMO. Where it says Dec. 3 as the date the three low-lifes lied to the police, it should say Aug. 3rd. Where they say Nov. 2007, they most likely meant Nov. 2006. By Nov. 2007, the trio had long since lawyered up. Notice that the brief has other typos here and there, indicating that whoever whipped it up wasn’t thorough.

    • David
      01/03/2010 at 10:08 PM


      In the Superseding Affidavit charging Price and Zaborsky, the 17th act of overt conspiracy was that Joe Price didn’t tell Kathy Wone that Michael Price had a key to the Swann Street residence in or about November 2007. The language in both of these sections looks to be the same, and if so it is correct in both places or incorrect in both.


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