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United States v. Lundergan

United States District Court, E.D. Kentucky, Central Division, Lexington

March 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GERALD G. LUNDERGAN and DALE C. EMMONS, Defendant.

          REPORT AND RECOMMENDATION

          Matthew A. Stinnett United States Magistrate Judge

         Defendant Gerald G. Lundergan filed a Motion for Leave to File a Motion for a Bill of Particulars [DE 39], which Defendant Dale C. Emmons moved to join. [DE 41]. The government responded and argued the motion should be denied. Defendant Lundergan replied [DE 64], and Emmons again moved to join. [DE 65]. The District Court granted the motions to join. [DE 66]. The Court recommends the District Court grant leave to file a bill of particulars but deny the substantive motion.

         I. BACKGROUND

         The grand jury indicted Defendants on August 31, 2018, with several counts of making false records and statements, and conspiring together to make unlawful campaign contributions to a candidate for United States Senate. [DE 1]. There are ten pending counts against Lundergan and six pending counts against Emmons. The Indictment is thirty-one pages in length, the first twenty pages of which set forth the factual basis for Count 1 and are incorporated into the factual basis for the remaining counts.

         II. ANALYSIS

         A. Leave to File a Bill of Particulars

         Defendants were arraigned on September 12, 2018. [DEs 15 and 16]. Fed. R. Crim. P. 7(f) requires defendants who wish to move for a bill of particulars to do so “before or within 14 days after arraignment or at a later time if the court permits.” Yet, Defendant Lundergan made the instant motion for a bill of particulars on November 30, 2018, outside of the prescribed time limits. [DE 39]. Defendants argue that extra time was required due to the complexity of the statutes involved and allegations against them. The Court agrees that extra time is not unreasonable in this circumstance, and that the government, having already responded to the motion, will not be prejudiced by allowing the untimely motion for bill of particulars.

         Thus, the Court recommends the District Court grant the motion for leave to file the motion for a bill of particulars outside the fourteen-day time period.

         B. The Merits of the Bill of Particulars

         “A bill of particulars is meant to be used as a tool to minimize surprise and assist defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes. [. . .] It is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial.” United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993) (internal citations omitted).

         According to their motions, Defendants seek disclosure of twenty-eight specific pieces of information that they group into three categories: (1) information related to allegations of false reports and corporate contributions; (2) the specific services alleged to be illegal payments; and (3) specific overt acts and unindicted co-conspirators. Although these “categories” are intertwined, the Court addresses each of Defendants' categories below.

         1. Allegations of False Reports and Corporate Contributions

         Defendants argue that the Indictment alleges they “caused” false campaign reports to be filed and “concealed” the use of corporate funds to make contributions, but the Indictment does not explain how the Defendants allegedly caused the false reports to be filed or concealed the contributions. A careful reading of the Indictment, however, proves otherwise.

         Specifically, counts four through ten of the Indictment set forth the specific dates the alleged acts took place and the entity which the United States alleges Defendants used to accomplish the violations. The Indictment alleges Lundergan participated in the Senate campaign at issue by communicating with and directing campaign employees, consultants, and third-party vendors as well as managing, approving, and overseeing campaign fundraising activities and payments. [DE 1 at ¶ 7]. The Indictment also alleges Emmons participated in the Senate campaign at issue by communicating with Lundergan, providing political consulting services to the candidate and the political committee, supervising and directing an individual known as “Person B, ” and by communicating with and directing third-party vendors. [DE 1 at ¶ 8]. Finally, paragraphs 14 through 20 of the Indictment explicitly describe, under the heading, “The ...


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