United States District Court, E.D. Kentucky, Central Division Lexington
GREGORY F.VAN TATENHOVE UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Gerald G.
Lundergan's Motion to Exclude Government Exhibits 68A-1
through 68A-17, 68B-1 through 68B-38, and 68C-1 through
68C-214. [R. 234.] The Court denied this Motion at the bench.
[R. 253.] Consistent with the bench ruling, the Court further
sets forth its reasons for denying the Motion.
exhibits at issue consist of a series of email threads
between Defendant Dale Emmons and others. Even though all
parties and the Court received copies of these email exhibits
nearly two weeks prior, on August 26, 2019 at 8:39 a.m.,
Counsel for Mr. Lundergan objected to the admission of these
emails, asserting various combinations of lack of
authentication, hearsay and “double hearsay” in
regard to each. [R. 234-1.] Counsel for Mr. Emmons joined in
the Motion generally; however, counsel for Mr. Emmons
conceded authentication and that the emails that purport to
be sent from Mr. Emmons' email address are, in fact,
statements made by Mr. Emmons.
United States anticipated it would be able to properly
authenticate all the email exhibits, and further argued that
each email falls under an exception to the hearsay rule. It
argued that many of these emails are statements made by Dale
Emmons himself, and therefore qualify as statements of a
party opponent. Fed.R.Evid. 801(d)(2)(A). The United States
has also alleged that Messrs. Lundergan and Emmons were
involved in conspiracy surrounding the campaign
contributions, and therefore in some instances, the
co-conspirator exception to the hearsay rule might apply. As
to the emails that are not statements made by Mr. Emmons
(i.e., the emails her received from third-parties), the
United States argued that they are not offered for the truth
of the matter asserted, but rather to show the context of the
conversations and the effect on the listener. At the close of
proceedings on August 26, 2019, the Court ruled from the
bench that Defendant's Motion was DENIED.
properly authenticate evidence, “the proponent must
produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Fed.R.Evid.
901(a). In the context of email authentication, “the
key consideration . . . is not simply whether the witness on
the stand was a sender or recipient of the email, but whether
the testifying witness can speak to the email's unique
characteristics, contents, and appearance.” United
States v. Bertram, 259 F.Supp.3d 638, 641 (E.D. Ky.
2017). Circumstantial evidence is sufficient to authenticate
an email. See United States v. Cosgrove, 637 F.3d
646, 658 (6th Cir. 2011); see also United States v.
Fluker, 698 F.3d 988, 999 (7th Cir. 2012) (applying this
rule to authentication of emails). As this Court has noted
before, “Federal Rule of Evidence 901 establishes a
seemingly low bar for authenticating or identifying evidence
in the first instance[.]” Bertram, 259
F.Supp.3d at 641.
this Motion was filed, the United States had not yet even
attempted to authenticate and introduce these emails. Special
Agent Tyler John “T.J.” Hanna took the stand on
Tuesday, August 28, 2019. [R. 252 at 3.] Agent Hanna
testified that he worked on the investigation of the
Defendants and reviewed a number of documents as part of that
investigation. Id. at 4. He testified that the FBI
served a grand jury subpoena on Mr. Emmons, and in response
the FBI received several emails. Id. at 74. Agent
Hanna stated that he reviewed those emails and identified
emails “sent by Mr. Emmons or associated with the work
that he was doing during the period from July through
December 2013, ” including the emails marked as
Government Exhibits 68C-1 through 68C-214. Id. Based
on this testimony, the Government moved for admission of the
exhibits, and the Court granted that motion. Id. The
Court found that Agent Hanna's testimony was sufficient
to properly authenticate the emails. The fact that these
emails were sent to and from Mr. Emmons email account, the
contents of the emails, and the circumstances in which they
were discovered all help to establish their authenticity.
Accordingly, Defendants' Motion to Exclude due to a lack
of authenticity is DENIED.
course, “even if an email is properly authenticated, it
still must be substantively admissible.” Id.
at 643. The Motion alleges that many of these emails contain
inadmissible hearsay. Hearsay is an out of court statement
offered for the truth of the matter asserted in the
statement. Fed.R.Evid. 801(a)-(c). Generally, hearsay is
inadmissible as evidence; however a number of exceptions
exist. For example, an out of court statement may be
admissible when “the statement is offered against an
opposing party and was made by the party in an individual or
representative capacity.” Fed.R.Evid. 801(2)(A).
statements made by co-conspirators are sometimes an
admissible exemption to the hearsay rule. Federal Rule of
Evidence 801(d)(2)(e) provides that an out of court statement
is admissible when the statement is “offered against an
opposing party and was made by the party's coconspirator
during and in furtherance of the conspiracy.” Fed. R.
801(d)(2)(e). In United States v. Enright, the Sixth
Circuit established a test for admitting a
co-conspirator's out of court statement pursuant to Rule
801. See generally United States v. Enright, 579
F.2d 980 (6th Cir. 1978). In order to admit evidence under
801(d)(2)(e), the District Court must make the requisite
Enright findings, namely: “(1) that the
conspiracy existed; (2) that the defendant was a member of
the conspiracy; and (3) that the co-conspirators statements
were made in furtherance of the conspiracy.” These
elements need only be proven by a preponderance of the
evidence. Enright, 579 F.2d at 986. Notably, the
Court need not make these findings at the prior to admission
of the statement. “If one of the conditions for
admission is not yet supported by evidence . . . the court
may conditionally admit the statement[, ]” and make the
Enright findings at some later point. United
States v. Samuels, 2019 U.S. App. LEXIS 21253, *18-*19
(6th Cir. July 18, 2019). The Court may consider the
objected-to emails themselves in determining the ultimate
question of admissibility. See United States v.
Vinson, 606 F.2d 149, 153 (6th Cir. 1979).
an out of court statement may be admissible if it is
not offered for the truth of the matter asserted,
but for some other purpose. For example, “[a] statement
offered as evidence of the bare fact that it was said, rather
than for its truth, is not hearsay.” United States
v. Rodriguez-Lopez, 565 F.3d, 312, 314 (6th Cir. 2009).
Similarly, “[a] statement that is not offered to prove
the truth of the matter asserted but to show its effect on
the listener is not hearsay.” Biegas v. Quickway
Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009).
counsel for Mr. Emmons conceded that the emails are from Dale
Emmons' email address are “statement[s] . . .
offered against an opposing party and was made by the party
in an individual or representative capacity.”
Fed.R.Evid. 801(2)(A). Therefore, those emails are admissible
against Mr. Emmons pursuant to Rule 801(2)(A). As to Mr.
Lundergan, the Court will conditionally admit the emails
written by Mr. Emmons pursuant to the co-conspirator
exception to the hearsay rule, subject to further
Enright findings. Lastly, the email threads contain
emails that were merely received by Mr. Emmons, and therefore
are not admissible as a statement of a party opponent, or
beneath the umbrella of the co-conspirator exception. The
United States has said that it included these emails to show
the context of the conversations, and to explain why Mr.
Emmons responds the way he does in the emails he drafts