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United States v. Lundergan

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

August 1, 2019




         During the Federal Grand Jury investigation of this matter, the Grand Jury subpoenaed witnesses and evidence concerning alleged misconduct arising out of the 2011 and 2015 Kentucky Secretary of State campaigns. Because such conduct was not indicted here, Defendant Gerald G. Lundergan, joined by Defendant Dale C. Emmons, seeks to suppress this evidence from trial, challenging the grand jury's authority to investigate this conduct and seeks to exclude the evidence under Federal Rules of Criminal Procedure 404(b) and 403. [R. 84; R. 85.] Because the Grand Jury does have this authority, and because the evidence is properly admissible under both Rules 404(b) and 403, these motions are DENIED.


         Mr. Gerald G. Lundergan and Mr. Dale C. Emmons were indicted last fall on counts of conspiracy to defraud the United States, making unlawful campaign contributions, making false statements, and falsification of a record or document. [R. 1.] The indictment alleges, generally, that Mr. Lundergan and Mr. Emmons used their corporations to illegally funnel money into Candidate A's 2014 campaign for United States Senate. Id.

         In order to prove their case at trial, the United States seeks to introduce evidence that Mr. Lundergan paid campaign consultants and vendors using funds from his corporation, S.R. Holding Co., Inc., for services rendered during Candidate A's campaigns for a Kentucky state office in both 2011 and 2015. [R. 90 at 1-2.] The Government claims that this evidence is relevant to prove Defendants' “intent, plan, preparation, knowledge, and absence of mistake.” Id. at 5. However, neither Mr. Lundergan nor Mr. Emmons was ever indicted for these acts. [R. 84 at 1-2; R. 91 at 6.] Mr. Lundergan strongly objects to introduction of this evidence, filing both a motion to exclude it pursuant to Federal Rules of Criminal Procedure 403 and 404(b), as well as a motion to suppress it. [R. 84; R. 85.] Mr. Emmons has joined only Mr. Lundergan's Motion to Exclude. [R. 92; R. 93.]

         Following full briefing of these motions, and a week after the Final Pretrial Conference, Mr. Lundergan moved to supplement his motion to exclude. [R. 161.] As grounds for this, Mr. Lundergan suggests that the Government did not timely file their notice of intent to introduce evidence pursuant to Rule 404(b). Id. The Government filed this notice on June 18, 2019. [R. 90.] The Standing Pretrial and Trial Management Order (Criminal) requires the Government only “provide reasonable notice in advance of trial.” [R. 18 at 3.] The Court believes the Government satisfied this requirement by filing its notice over seven weeks before trial is scheduled to begin. Furthermore, Mr. Lundergan's motion was filed nearly six weeks after the Government filed its notice. He suggests that the supplement was necessary because he was given only three days to file a reply, however, at no point did he request additional time. Nonetheless, the Court permits Mr. Lundergan to supplement his motion and finds that none of his additional arguments have merit.



         Generally, the Government may not introduce evidence of other bad acts at trial because the introduction of such evidence may lead to an improper guilty verdict. Fed.R.Evid. 404.[1] In some limited circumstances, however, the Government may introduce evidence of past conduct if the conduct is sufficiently tied to the presently charged offense. To determine whether evidence of a crime, wrong, or other bad act is admissible, the Court must determine if sufficient evidence exists that the act in question occurred, whether the evidence of that act is probative of a material issue other than the defendant's character, and whether the probative value of that evidence is substantially outweighed by its potential prejudicial effect. United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003).

         However, background evidence, also known as res gestae evidence, provides an exception. As has been explained by the Sixth Circuit:

[p]roper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness's testimony, or completes the story of the charged offense.

United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011) (quoting United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)). When res gestae evidence is presented in this way, it is not subject to the strictures of Rule 404(b). United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013) (citing United States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012)). The Government argues that evidence of Defendants' contributions to the 2011 and 2015 campaigns is res gestae evidence, but in the alternative, would be admissible under Rule 404(b) as well. [R. 91 at 8-9.]

         First, the Court must consider whether the evidence the Government seeks to introduce has a sufficient “causal, temporal, or spatial connection with the charged offense.” Marrero, 651 F.3d at 471 (quoting Hardy, 228 F.3d at 748). The evidence here took place in 2011 and 2015, several years before and after the indicted conduct allegedly occurred. However, by nature, crimes involving elections cannot occur every day. Adams, 722 F.3d at 811. While these actions may have been seen as remote for other crimes, Candidate A's campaigns in 2011 and 2015 directly proceeded and succeeded her campaign in 2014. [R. 91 at 13.] These alleged acts, performed in sequential campaigns for Candidate A, therefore share a temporal connection. See Adams, 722 F.3d at 811.

         Furthermore, these alleged acts from 2011 and 2015 involve Mr. Lundergan, Mr. Emmons, Candidate A, and Person C, on whom the Government intends to call for testimony about these acts. [R. 91 at 9-13.] These are the same actors involved in the indicted charges, engaging in the same conduct as alleged in the indictment. Id. Thus, evidence of previous contributions made by both Mr. Lundergan's and Mr. Emmons's companies to and on behalf of Candidate A's various campaigns helps to “complete the story” of the charged conspiracy, even though the unindicted acts occurred in other campaigns. See Adams, 722 F.3d at 811 (permitting res gestae evidence of vote buying twenty years prior to the alleged vote buying in the indictment because the evidence involved ...

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