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United States v. Lundergan

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

August 28, 2019

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

          MEMORANDUM OPINION

          GREGORY FFVAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Defendants' Motion to Strike Improper Prosecutorial Commentary and for a Curative Instruction. [R. 232.] The Court denied this motion from the bench, and what follows is the Court's detailed articulations as to why the motion was denied. The United States called a witness to testify on a Friday during trial, asking foundational questions regarding a potential prior inconsistent statement made by the witness during an FBI interview. Testimony of that witness was set to continue on Monday. [R. 229 at 172.] The Defendants objected to the cumulative nature of the questioning but did not raise further objections. However, after a weekend recess and in the early morning hours before Court reconvened on Monday to continue with the witness's testimony, the Defendants requested the Court strike the Government's questioning as a violation of the Sixth Amendment and as improper vouching. [R. 232.]

         I

         On Friday, August 23, 2019, the United States called Elmer Joseph “Joey” George, Jr., as a witness in their case in chief. [R. 229 at 65.] Mr. George had worked with Defendant Dale Emmons beginning in July 2013. Id. at 67. During the direct examination, the following exchange took place:

[GOVERNMENT]: If we could publish what's been admitted as Government Exhibit 4C.
BY [THE GOVERNMENT]: Q. Is this, to your knowledge, the first check you got for salary from Emmons and Company?
A. Yes, ma'am.
Q. And what's the date of it?
A. September 11th, 2013.
Q. Does it reflect that $3, 500?
A. Yes, ma'am.
[GOVERNMENT]: If we could look at what's been admitted as Government Exhibit 5C.
BY [THE GOVERNMENT]: Q. What's the date on this check, Mr. George?
A. October 14th, 2013.
Q. Is that another monthly check for $3, 500?
A. Yes, ma'am.
Q. And did you understand that to be your salary?
A. Yes, ma'am.
[GOVERNMENT]: And the last one, if we could look at Government Exhibit 6B.
BY [THE GOVERNMENT]: Q. Is this the third check you received from Emmons and Company for your monthly salary?
A. Yes, ma'am.
Q. And what's the date on this one?
A. November 15th, 2013.
Q. Another $3, ...

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