Sie sind auf Seite 1von 15

Case: 7:15-cr-00018-DCR-EBA Doc #: 123 Filed: 06/13/16 Page: 1 of 5 - Page ID#: 414

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
CRIMINAL ACTION NO. 15-CR-18-S-DCR
UNITED STATES OF AMERICA

PLAINTIFF

V. UNITED STATES RESPONSE TO DEFENDANTS MOTION IN LIMINE

LARRY SHEPHERD

DEFENDANT
* * * * *

The Defendant, Larry Shepherd has filed a motion in limine [R. 120] seeking to
preclude the introduction of the testimony of Scottie McCarty regarding prior bad acts he
committed in other election cycles with some of the codefendants in this indictment. He
essentially repeats and expands the motion on the same subject filed by codefendant Gary
Risner [R. 104]. This Court considered and denied Risners motion. [R. 114].
Before addressing the motion, it is important to note that Shepherd has
misunderstood the significance of a recent disclosure by the Government of supplemental
statements made by Scottie McCarty. In his memorandum in support [R. 120-1],
Shepherd contends that the Government has not indicated that it would seek the
introduction of events mentioned in the new statements, other than those pertaining to the
2010 election. (Id., p. 2) To the contrary, the Government notified the defendants by
email, contemporaneous with disclosing the supplemental statements, that it considered
this to be a supplementation of its prior 404(b) notice, stating: As a supplement to the
1

Case: 7:15-cr-00018-DCR-EBA Doc #: 123 Filed: 06/13/16 Page: 2 of 5 - Page ID#: 415

initial 404(b) notice I am forwarding shortly, by separate email, Scotties typed statement
and the new FBI 302. (A copy of that email is attached.) To the extent there is any
ambiguity in that statement, the Government now makes clear that it considers all of
McCartys testimony about his prior, illegal, election-related activities in Magoffin
County to be admissible background evidence. So that the Court can evaluate this new
information, the Government has attached the new FBI 302 and the statement typed by
McCarty. All of the Governments arguments for admitting the original information
apply with equal force to this new information.
Legal Analysis
The United States restates and incorporates herein by reference its arguments and
analysis submitted in response to Risners motion in limine. [R. 109]. In summary, a
testifying co-conspirators prior illegal associations with members of the charged
conspiracy, in similar prior settings, is inextricably intertwined with the charged
conspiracy because it is 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 witnesss testimony, or completes the story of the charged offense. United
States v. Hardy, 228 F.3d 745, 748 (6th Cir 2000); see also United States v. Blankenship,
870 F.2d 326 (6th Cir. 1988) (witnesss prior incarceration with defendant explains how
they had the opportunity to plan the current crime). Scottie McCartys testimony about
other election cycles also answers questions that otherwise would arise such as why
the codefendants asked him to participate in the fraud and why the group chose to act in a

Case: 7:15-cr-00018-DCR-EBA Doc #: 123 Filed: 06/13/16 Page: 3 of 5 - Page ID#: 416

particular way. See United States v. Blakeney, 942 F.2d 1001 (6th Cir. 1999) (witnesss
prior incarceration with the defendant explained how the witness had the opportunity to
commit the crime with the defendant and how their association began).
The 2014 election cycle in Magoffin County did not occur in an historical vacuum.
Scottie McCarty describes an ongoing process of election fraud that involves the same
core group of actors with the same motive in successive election cycles. These actors
tweak and modify their plan to meet the problems of the past and to take advantage of
newfound vulnerabilities in voting integrity. The only thing that changes is the year.
Scottie McCartys history of election fraud with this core group completes the
story of the current case. Scottie McCartys evidence is similar to evidence that was
admitted by the District Court in United States v. Adams, 722 F.3d 788 (6th Cir. 2013), a
decision upheld by the Court of Appeals. See id. at 812 (reversed on other grounds).
There, witnesses testified about vote buying many years before the events set out in the
indictment. The District Court held: . . . this evidence is a prelude to and completes the
story of the charged conspiracy by showing how . . . [the defendants] rose to become
political bosses in Clay County, their knowledge of vote buying, and their personal
relationship. Id. at 812. Scottie McCartys prior illegal dealing with the present
defendants is a fortiori as probative as the Adams evidence.
The temporal remoteness of the prior election crimes is not preclusive of
probativeness. As noted by the Court of Appeals in Adams, supra, elections do not

Case: 7:15-cr-00018-DCR-EBA Doc #: 123 Filed: 06/13/16 Page: 4 of 5 - Page ID#: 417

happen every day. McCarty describes a seamless history of fraud in election after
election.
The evidence also is admissible under FRE 404(b) because it is probative of the
Defendants intent, plan and motives. As previously discussed, sufficient evidence exists
for a jury to find that the prior acts occurred. The prejudicial impact of this evidence
does not outweigh its probative value. That can occur when the prior acts are different or
more serious than the charged offense. United States v. Stout, 509 F.3d 796 (6th Cir.
2007). Here, however, the misconduct essentially is the samethe manipulation of
voters, votes, and voting, in order to steal elections. It does not cast the defendants in a
different light.
The motion should be denied.

Respectfully submitted,

KERRY B. HARVEY
UNITED STATES ATTORNEY

By:

s/ Kenneth R. Taylor
Assistant United States Attorney
260 West Vine Street
Lexington, Kentucky 40507-1612
(859) 685-4874
FAX (859) 233-2747
Ken.Taylor@usdoj.gov

Case: 7:15-cr-00018-DCR-EBA Doc #: 123 Filed: 06/13/16 Page: 5 of 5 - Page ID#: 418

CERTIFICATE OF SERVICE

On June 13, 2016, I electronically filed this notice through the ECF system, which
will send notice of electronic filing to all parties of record.
s/ Kenneth R. Taylor
Assistant United States Attorney

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-1 Filed: 06/13/16 Page: 1 of 1 - Page ID#:


419

Taylor, Ken (USAlffE)

From:
Sent
To:
Cc
Subject

Taylor, Ken (USAKYE)


Thursday, May 26,2015 2:09 PM
'curtislegall@windstream.net'; Curtis Law (canoncopieremail@inbox.com); 'Jason
Nemes'; pillersn@bellsouth.neU'kmcknight@fmhd.com';
Joseph.lane@pillersdorflaw.com'; willis coffey (wgcoffey@yahoo.com)

'mike@foxlawl.com'; Boone, Andrew (USAKYE)


404(b) in Risner et. al.

Gentlemen: Asyou know, sometime ago we notified you of potential 404(b) material bysendingyou the FBI 302of
Scotty Mccarty. A few weeks ago Mccarty emailed SA Kirk a typed statement supplementing that first interview.
Apparently, after thinking about his prior relationship with various individuals in Magoffin politics Mccarty remembered
additional incidents. When I received that supplement I wanted to insure that Scotty had told us everything so I
scheduled another interview. That was conducted on May 13. Another FBI 302 was generated. As a supplement to the
initial 404(b) notice I am forwarding shortly, by separate email, Scottie's typed statement and the new FBI 302.
lf you have any questions let me know.
Ken

.fD-302

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-2 Filed: 06/13/16 Page: 1 of 4 - Page ID#:


420
OrFtc.Llt_B=:cg,lo
- 1 or I (Rev. s-s-lo)

h.um.n: rodldans a.w d'OiHlr rn.d


7.r r{rrur.
6N. bF r.d.d hy .
..frird hl doren
sPbh

FEDERAL BTJREAU OF IIYVESTIGATION

Datc of

enty

05

1,3

/ 201,6

Scott Lynn McCarty, was interviewed telephonically. After being


advised of the identity of the interviewing Agent and the nature of the
interview, McCarty provided the foilowing information:
McCarty wanted to provide additional information regard voter fraud in
Magoffin County Kentucky. In 2008, McCarty, Doug Patrick, and Gary
"Rooster" Risner rzoted 60 extra votes for Kentucky State Representative
.fohn Sizemore. McCarty was the Democratic Judge and Patrick was the
Republican Judge at the Carty Branch Precinct. McCarty voted 60 times and
took the sign in register to Risner, who provided 60 signatures for
registered voters who did not vote.

to provide this information and additional information in


an email. On May 5, 20L6, McCarty provided an email detailing voter fraud
in Magoffin County from the yeax 2002 until 201,2.
McCarty agreed

A copy of the email is attached.

Investigationon

05/04/2016 ,, Lexington, Kentucky, United States

File# 55E-LS-542791-2

(Phone)
Datc

drafted

05 / 10 /

2016

ry Kenneth F. Kirk II
your agenry; it and its contenb are not
This document contains neither recommcndrtions nor conclusions ofthe FBI. It is the propcrty ofttre FBI ard is loaned to
to be distribrsed outside your agenry'

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-2 Filed: 06/13/16 Page: 2 of 4 - Page ID#:


421

2002-County Election
Charles Hardin ran against bill w. may. I had three absentee ballots that were ready to be voted. I met
Charles hardin behind his medical plaza. He got in the truck with me and lshowed him the paper ballots.
He handed me ten 100 dollar bills/1,000 dollars cash. He told me

to "take care ofthem" and that lwas

"beginning to understand Magoffin county politics.

2005- county election


asked Charles hardin (democratic chairman of the county) to see if I could set as an election judge on
carty branch precinct, which is the largest precinct in the county. Hardin discussed it with jerry helton
and they decided to place me as democratic judge for the carty branch precinct along with daris minix
as republican judge, and Rodney Patrick (my first cousin) as clerk, along with chester howard as sheriff.
I

Gary risner was running for magistrate in district one. He won the primary.nominee with carty branch's
help. Large amounts of people came to vote - had been sent there by gary riiner, and told them to look

for me. Gary risner instructed me to vote them for Charles hardin, rena shepherd, bob Jordan, and gary
risner. Daris minix can verifo this.
Night before 2005 general election, gary risner and me met with Charles hardin and randall hardin
(Charles' brother) at Charles hardins medical office. After 15 minutes of discussion, randall hardin leaves
lhe office for approximately two minutesthen returns. Then approxirn-ate'ly 5 more minutes, we ended

the meting. Gary rE4sLq!!d my$llg9.ald'gClin C{y-ti9!9rs ue-biqleJberejs25-!00dpllar bills.in the


ashtray (obviously put there by randall hardin when he left the office for 2 minutes),
During the meeting, Charles hardin said he was strongly supporting rena shepherd for county clerk, jerry
swiney for PVA, gary risner for magistrate, and carl j howard for school board member (because

between the two candidates running for school board, he said that he could "control" howard.)
20OG general election, daris minix came to me very upset after seeing how
voted.
lt was obvious that the floaters were all being steered to my machine for
everyone was being
voting because they were there to sell their vote and that the letitimate voters were put in Daris'voting
line. Precinct was held at Middle Fork Elementary School.

On the evening

ofthe

After the close of the poll that night, we tallied each machines totals. To the best of my knowledge
Charles hardin, gary risnerJerry Swiney, rena shepherd, won my machine by large margins. The other
machine that daris minix was watching was all close if not a deficit. Gary risner won carty branch but lost
the election.

2008-

Approximately march of 2@8, lwas elected as a democratic chair of carty branch precinct along with
Jessica allen and evan green. The state representative race, john sizemore from Magoffin county ran
against ancil smith from knott county. With the help of myself as the democratic committee chairman,
doug Patrick (republican committee chairman), rena shepherd, larry shepherd, and gary risner, we
picked the board for carty branch. The board members chosen for carty branch are as listed: scotty

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-2 Filed: 06/13/16 Page: 3 of 4 - Page ID#:


422

mccarty- democratic judge, Rodney Patrick (my first cousin)-republican judge, chester howard (sets on
water board for Charles hardin as sheriff, and paula montgemery as clerk.
ln conversation with gary risner, he was told with larry shepherd that it would be okay to vote extra
ballots throughout the rest of the day BUT, not to put the red seal on the bag with all of the election

data, because the number of signatures would not match the vote total. Throughout the day, I voted
and confirmed 6O ballots forjohn sizemore. Rodney Patrick had no knowledge ofthis and he did not
participate until close to the end of the day. I told Rodney Patrick of the scheme that gary risner had
instructed me to do. Rodney asked me how many I had voted, and I told him 60 and that I had kept track
by placing pennies from my left pants pocket into my right pants pocket. Obviously there were 50 extra
votes without signatures on the book, Me and Rodney Patrick left the voting precinct with the voting
bag unsealed. We drove to gary risners house and he was waiting on us. He took the book and went
through the pages and randomly selected 50 names and then forged their signatures, and bubbled in by
their name, aftergary risner finished I put the book in the bag and sealed it and then Rodney Patrick and
myself took lt to the courthouse (Rodney Patrick was very unhappy with this scheme.) To ttre best of my
memory, I believe that Carty Branch Precinct ( the largest precinct in the county) the totals were: John
Sizemore 298 and Ancil Smith about 24.

20LLgrimes iirn-ning

foi secretary state agiinst elane walker.

As in previuois elections,

it was business
handseleet+hefrreeinct-boards-so{iat vote buying could take place as usual toet her
-as+sualto
-allEon
elected pre Charles hardin and gary risner. Again, Carty Branch had the largest voter turn out and the
largest margin in the county. I believe it was Grimes 125 to Walker 7.

2012
State representative race with two candidates from knott county runnin& john short and bobby
Hamilton. The circuit court clerk race was on the ballot as well. Tanya arnett ward and walter whittaker.
Then approximately one month prior to the primary election, I was at my farm talking with gary risner.
John short and Charles hardin pulled up in a vehicle and we discussed for roughly thirty minutes, Charles
hardin telling us that we needed to make sure that john short was elected to benefit Charles hardin.
After Charles hardin and gary risner leave to to to Bary rinsers home (located in plain sight ofwhere we
were meeting) john short got in my vehicle with me and rode to gary risners house discussing with me
how he needed me on the election board to help get him elected. We met back up with Charles hardin
and gary risner and as we were leaving, john short and Charles hardin insisted that we do "whatever it

took" to get short elected.


Approximately two weeks before the election, while choosing the boards, larry shepherd and gary risner
told me and my brother Robbie mccarty that they were going to put two republicans to sit with us that
would let us control the voting, no questions asked (Jessica prater-republican judge, and Kendra cartyclerk).

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-2 Filed: 06/13/16 Page: 4 of 4 - Page ID#:


423

Me, gary risner, larry shepherd, jerry helton, chester howard (fireman) went to carty branch precinct
and set up everything just like it had been for the 2010 election. Chester Howard had the firetruck
pulled in so that the public and the clerk could not see the voting machines.

Night before the election, Robbie mccarty and myself were at gary risners house when walter whittaker
(stepson of greg lsaag and his mom is donna lsaac) and jeff lsaac who is the son of greg lsaac and
worked for water district had a conversation. During this conversation between me gary risner walter
whittaker and jeff lsaac-walter and jeff said that they had evefihing set up for flat fork precinct on the
day of the election. For vote buying or stealing votes to whatever it took for john short and walter
whitaker to be elected. After walter whittaker and jeff lsaac left, gary risner told me that they gave him
1000 dollars to pay for votes the next day.
On the morning

ofthe election, tanya ward and her husband randy ward showed up with fire chief scott

castle. They were demanding that the fire truck be moved so that it wouldn't obstruct the view of the

machines.
During the day of the election, gary risner brought people to the precinct to vote and directed them to
me. This went on all day long. Because the board had been hand picked by the election comitioners and
rena shepherd, I was able to work both machines all day long with no questions asked.
Due to that strategy, walter whittaker carried carty branch-which is tanya wards home precinct, by 54
votes. He only carried one other precinct, flat fork which is his home precinct.

Afterthe ?q12 electlq!, me Robbiq lllMyjElefry9le qEgltlllng wh4_ql! Charle; lrerdln had qone:for
walter whittaker. Gary risner told us that Charles hardin gave walter whittaker SOOO dollars.

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-3 Filed: 06/13/16 Page: 1 of 5 - Page ID#:


424

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-3 Filed: 06/13/16 Page: 2 of 5 - Page ID#:


425

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-3 Filed: 06/13/16 Page: 3 of 5 - Page ID#:


426

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-3 Filed: 06/13/16 Page: 4 of 5 - Page ID#:


427

Case: 7:15-cr-00018-DCR-EBA Doc #: 123-3 Filed: 06/13/16 Page: 5 of 5 - Page ID#:


428

Das könnte Ihnen auch gefallen