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's Proposed
Exhibits 61H, 61L, 61S, 61T, 61V, 61W, 61X and 61Y. [R. 247.]
The Court ruled on this motion at the bench. [R. 259.] The
motion was Granted with respect to exhibit 61H, and Denied
with respect to 61L, 61S, 61W, 61X, and 61Y. The motion was
Denied as Moot with respect to Exhibit 61T. The Court took
the objection to Exhibit 61V under advisement over the lunch
hour, but ultimately granted the Motion with respect to 61V.
[R. 260.] Consistent with the bench ruling, the Court further
sets forth its reasoning.
counsel never hesitates to burn the midnight oil. In a motion
filed just after midnight on the morning of August 28, 2019,
the Defendants objected to several exhibits the Government
intended to introduce through former Alison for Kentucky
campaign manager, Jonathan Hurst. [R. 247.] The motion raises
a myriad of objections under Rules 401, 403, 404(b) and
hearsay objections. Id. The Defense also argues that
introduction of some of these exhibits might even be
violative of the Fifth Amendment. Id.
of the late hour and being in the midst of trial, the United
States has again been unable to file a written response.
However, the Court heard argument on the motion outside of
the presence of the jury. [R. 259 at 56-153.] After argument,
the Court ruled from the bench that the motion was GRANTED
with respect to 61H, and DENIED with respect to 61L, 61S,
61W, 61X and 61Y. The motion was DENIED AS MOOT as to 61T,
because the United States represented that they did not
intend to introduce that exhibit. Finally, the Court took the
exclusion of exhibit 61V under advisement, and later ruled
from the bench to exclude that exhibit as well.
is only admissible if it is relevant. “Evidence is
relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.”
Fed.R.Evid. 401. However, relevance does not equal
admissibility. For example, the Court may exclude relevant
evidence “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”
Fed.R.Evid. 403. Some relevant evidence is admissible for one
purpose but not another. For instance, “evidence of a
crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with the character,
” but the same evidence would be admissible “for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Fed.R.Evid. 404(b)(1)-(2). Even
then, “[t]o be admissible, evidence of [a]
defendant's prior bad acts must be substantially similar
and reasonably near in time to the charged offense.”
United States v. Wynn, 987 F.2d 354, 357 (6th Cir.
1993). Similarly, an out of court statement is inadmissible
hearsay if offered for the truth of the matter asserted, but
may be admissible as evidence under one of the exceptions to
the hearsay rule. Fed.R.Evid. 801(c), (d); Fed.R.Evid. 802.
Motion [R. 247] objected to entry of many different exhibits,
of many different types. Additionally, the Court granted the
motion as to some and denied as to others. For the sake of
clarity, the exhibits are addressed here individually.
- Granted. Exhibit 61H is an email thread
sent from Jonathan Hurst to Defendant Gerald Lundergan. [R.
247-1.] Included in that email is an article forwarded from
Mr. Hurst to Mr. Lundergan concerning the funding of an
Alison for Kentucky campaign bus. In the article, the author
“speculates Lundergan's company was renting the bus
to the Campaign below fair market value, ” which could
be a violation of campaign finance laws. [R. 247 at 4.] The
United States intended to offer the email as evidence that
Mr. Lundergan was on notice about FEC rules and regulations
he is charged with violating. [R. 259 at 134.]
email is relevant to the issue of notice; however, its
probative value is substantially outweighed by the danger of
unfair prejudice. The article heavily implies that Mr.
Lundergan has violated campaign finance laws with regard to
the bus, even though the FEC investigated the matter and
ultimately dismissed the complaint. To put a newspaper before
the jury would unfairly prejudice Mr. Lundergan because the
article implies that Mr. Lundergan has previously engaged in
- Denied. Exhibit 61L is an email from Mark
Putnam of Putnam Partners to Will Leubsdorf, Gerald
Lundergan, and Jonathan Hurst. [R. 247-2.] The parties to the
email discuss the various companies through which Alison for
Kentucky campaign ads could be sent to television stations.
The Defense objected to the email based on relevancy and
“incendiary language” in the email. Although the
Defense dislikes the phrase “stupid spending, ”
the email is relevant on the issue of whether Mr. Lundergan
had involvement in the campaign's finances. Its probative
value on this point is not substantially outweighed by the
danger of unfair prejudice that might result from the phrase
“stupid spending.” For these reasons, the Court
denied the motion to exclude this exhibit.
and 61W-Denied. The Defense objected to
these exhibits in conjunction with one another. Exhibit 61S
is an email from Chris Carr to Jonathan Hurst identifying
“Mrs. Lundergan” as treasurer for a joint
fundraising account between the Alison for Kentucky Campaign
and the Kentucky Democratic Party. [R. 247- 3.] Exhibit 61W
is an email from Chris Carr to Mr. Lundergan and Jonathan
Hurst about Mr. Lundergan's outreach for the Kentuckians
United coordinated campaign. First, according to the defense,
61S is simply inaccurate, as Mrs. Lundergan was not the
treasurer of any entity. Next, the defense assumed “the
Government presumably plans to use the 61S . . . ant 61W to
demonstrate that the coordinated campaign effort did not
launch until the summer of 2014, ” which the Defense
contends would be “grossly misleading” and
“premised on a confused understanding of campaign
finance law.” [R. 247 at 6.] ...