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United States v. Lundergan

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

August 12, 2019



          Gregory F. Van Tatenhove United States District Judge

         This matter is before the Court upon the United States' Motion in Limine to Exclude Improper Expert Testimony and Motion to Quash Subpoenas. [R. 120; R. 195.] The United States moves to exclude two of Mr. Lundergan's proposed expert witness, Mr. Michael Toner and Mr. Peter Nichols, on the grounds that their testimony is irrelevant and would consist of improper legal conclusions. Id. Seemingly in reaction to the chance his experts might be excluded, Mr. Lundergan issued subpoenas to three FEC officials on August 8, 2019. The United States moves to quash the subpoenas on the grounds that these witnesses would offer the same, impermissible legal testimony as defendant's proffered experts. [R. 195.] For the following reasons, the United States' motion to exclude is DENIED, while the motion to quash is GRANTED.


         The parties are well-aware of the facts undergirding this case: defendant Gerald C. Lundergan, along with co-defendant Dale C. Emmons, are alleged to have violated various portions of the Federal Election Campaign Act (FECA). [See R. 1.] More specifically, the United States alleges that Mr. Lundergan and co-defendant Dale C. Emmons participated in a scheme to funnel hundreds of thousands of dollars in corporate funds into the 2014 United States Senate Race. [R. 120-1 at 2.] In discharging their duty, the jurors in this case will be required to apply the facts presented at trial to the law of the FECA to determine whether or not the defendants' conduct violated that act.

         The FECA is a myriad of rules and regulations, and the Federal Election Commission (FEC) is the administrative agency in charge of administering and enforcing it. See Buckley v. Valeo, 424 U.S. 1, 279 (1977). For that reason, on July 2, 2019, Mr. Lundergan sent notice to the United States of his intent to call expert witnesses Michael Toner and Peter Nichols, two former officials of the FEC. [R. 120-1 at 3.] Mr. Toner is “former Chairman of the Federal Election Comission” and “a leading practitioner in election and campaign finance law.” [R. 120-2 at 2.] Mr. Nichols is “the owner of Common Sense Consulting, a consulting business that provides campaign finance compliance advice[.]” [R. 120-3 at 1.] Also, Mr. Nichols formerly worked in the FEC's Reports and Analysis Division. Id. at 2. The experts would testify to, broadly speaking, the relevant rules and regulations of the FECA.

         The United States filed a Motion in Limine to exclude Mr. Toner and Mr. Nichols' testimony on the grounds that the experts' testimony “would consist of impermissible legal conclusions, does not rest upon a reliable methodology that can be objectively analyzed, would serve to confuse the jury, and is otherwise irrelevant to the issues properly in dispute at trial.” [R. 120-1 at 7.] In contrast, Mr. Lundergan argues that such testimony is necessary to aid the jury because the regulations surrounding campaign finance law is extremely complex, and “would provide a necessary framework through which the jury can understand the alleged crime.” [R. 136-1 at 5.]

         At the close of voir dire, the Court heard further argument from the parties on the motion to exclude. At that time, counsel for Mr. Lundergan indicated that if this Court excluded the expert testimony, the defense team might issue subpoenas to current FEC officials to elicit similar testimony.



         The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         The seminal case evaluating expert testimony is Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). In that decision, the Supreme Court explained that a district court's gatekeeping responsibility is implicit in Rule 702, “ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Further, the Supreme Court listed several specific factors to help determine the reliability of expert testimony based on scientific knowledge. See Id. at 590, n. 8. These factors include whether a theory or technique can be or has been tested; whether the theory has been subjected to peer review and publication; whether there is a high known or potential error rate; whether there are certain operation standards that should have been or were followed; and whether the theory or technique is generally accepted within the scientific community. Id. at 592-94. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court determined that the gatekeeping obligation and subsequent factors established in Daubert apply with equal force to non-scientific experts. However, those factors are not definitive and district courts “must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho, 526 U.S. at 152.

         From Rule 702 and Daubert, the Sixth Circuit has distilled a two-part test for admitting expert testimony. First, is the expert qualified and the testimony reliable? And second, is the evidence relevant and helpful to the trier of fact? See, e.g., United States v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997). Notably, the Court's gatekeeping role under the case law “is not intended to supplant the adversary system or the role of the jury.” Allison v. McGhan Medical Corp., 184 F.3d 1300, 1311 (11th Cir. 1999). Instead, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 at 596. Whether or not to admit expert testimony is a matter over which the district court ...

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