Case: 5:18-cr-00106-GFVT Doc #: 27 Filed: 10/04/18 Page: 1 of 6 - Page ID#: 130

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON

UNITED STATES OF AMERICA,

Plaintiff,

v. Criminal No. 5:18-cr-106-GFVT

GERALD G. LUNDERGAN and

DALE C. EMMONS,

Defendants.

______________________________________________________________________________

DEFENDANTS’ JOINT MOTION TO CONTINUE TRIAL, DECLARE CASE

COMPLEX, AND RESET PRETRIAL DEADLINES

______________________________________________________________________________

Come the defendants, Gerald G. Lundergan and Dale C. Emmons, by and through their

respective counsel, pursuant to 18 U.S.C. § 3161(h)(7)(A), and jointly move the Court for a

continuance of the trial presently scheduled for November 13, 2018, and to declare the case

complex. The defendants submit that a continuance is necessary in order to serve the ends of

justice, and further submit that the interest of the public and the defendants in a speedy trial is

outweighed by other factors addressed herein below which necessitate a continuance. See 18

U.S.C. § 3161(h)(7)(A).

The defendants further move the Court for an extension to and including November 30,

2018, to file pretrial defensive motions.

In support of this motion, the defendants state as follows:

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1. The defendants are charged in a 10-count, 31-page indictment related to the 2014

race for United States Senate. The indictment charges a complex conspiracy in violation of 18

U.S.C. § 371, extending over the period July 2013 through January 2016, accusing that Mr.

Lundergan and Mr. Emmons did (a) “knowingly and willfully make contributions of corporate

money” aggregating more than $25,000 in violation of 52 U.S.C. §§ 30118(a) and

30109(d)(1)(A)(i); (b) “knowingly and willfully cause the submission of materially false,

fictitious, and fraudulent statements and representations in a matter within the jurisdiction of the

Federal Election Commission” in violation of 18 U.S.C. § 1001(a)(2); and (c) “knowingly conceal,

cover up, and make false entry in records and documents, and cause others to do so, with an intent

to impede, obstruct, and influence the investigation and proper administration of a matter within

the jurisdiction of a department and agency of the United States” in violation of 18 U.S.C. § 1519.

The indictment also charges Mr. Lundergan and Mr. Emmons with aiding and abetting one another

in (a) one substantive count of violating 52 U.S.C. §§ 30118(a) and 30109(d)(1)(A)(i) in 2013, (b)

two substantive counts of violating 18 U.S.C. § 1001(a)(2) in 2013 and 2014, and (c) two

substantive counts of violating 18 U.S.C. § 1519 in 2013 and 2014. Mr. Lundergan alone is

charged with two more substantive counts of (a) violating 18 U.S.C. § 1001(a)(2), and (b) violating

18 U.S.C. § 1519, in 2015 and 2016.

2. The indictment was returned on August 31, 2018 (DE 1). The defendants appeared

for arraignment on September 12, 2018 (DE 15). The Court entered an Order on September 12,

2018, setting the case for trial on November 13, 2018 (DE 17).

3. On September 25, 2018, defendants’ counsel received the initial production of

discovery consisting of approximately 40,000 pages. On October 2, defendants’ counsel received

a second production of discovery consisting of an additional 400,000 pages. Counsel have been

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advised that the government will be making “additional productions in the future.” As a result, at

present the defendants are in receipt of approximately 440,000 pages of discovery with an

expectation that the quantity of discovery might ultimately exceed 500,000 pages.

4. The defendants and their counsel cannot review 440,000 pages of discovery and be

prepared for trial by November 13, 2018, as presently scheduled. Even more, once the defendants

and their counsel complete the review of the initial 440,000 pages of discovery, they need

sufficient time to consider available defenses, interview possible witnesses, and marshal evidence

to rebut the government’s case. In short, the defendants and their counsel cannot be prepared for

trial by the assigned trial date of November 13, 2018.

5. Given the time which will be necessary to understand the government’s proof,

investigate the case, interview potential witnesses, marshal defense evidence, and generally

prepare for trial, the defendants suggest that it would constitute a miscarriage of justice for the trial

of this action to go forward on November 13, 2018. See 18 U.S.C. § 3161(h)(7)(B)(i). Moreover,

the defendants submit that this case is sufficiently unusual or complex due to the nature of the

prosecution “that it is unreasonable to expect adequate preparation for pretrial proceedings or for

the trial itself within the time limits established” by the Speedy Trial Act and the Court’s

Scheduling Order. See 18 U.S.C. § 3161(h)(7)(B)(ii). The nature of the allegations involving the

intricate federal campaign finance laws and regulations, in combination with the myriad of facts,

witnesses and documents related to the charges, make this case “complex” and an exception to the

Speedy Trial Act. Id. Even more, to proceed to trial on the current schedule, given the complexity

of the charges and the substantial quantity of initial discovery produced, would “deny counsel for

the defendant . . . the reasonable time necessary for effective preparation, taking into account the

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exercise of due diligence.” 18 U.S.C. § 3161(h)(7)(B)(iv). Accordingly, the defendants move the

Court to continue the November 13 trial date to a later date convenient to the parties and the Court.

6. Counsel for the defendants have conferred with counsel for the government and

have been advised that the government has no objection to the defense request to designate the

case as “complex” and to continue the trial currently scheduled for November 13, 2018. The

government has indicated that it will file a response addressing the length of the continuance.

7. In addition, the defendants request that the Court reset the pretrial deadline for

defensive motions. The indictment addresses the federal campaign finance laws which, in turn,

implicates the ever-changing legal landscape of interpretation of the federal campaign financing

scheme. The defendants intend to file pretrial motions which address significant constitutional

and regulatory issues and defenses implicated by the campaign finance statutes, regulations and

court interpretations, as well as the charges in the indictment. Those defenses may prove

dispositive to the charges. However, those defenses cannot be asserted, let alone fully developed,

until the defendants and their counsel have had sufficient time to review the substantial discovery

provided. Accordingly, the defendants request that the Court reset the deadline for pretrial

defensive motions for November 30, 2018.

8. The government has indicated that it would require two weeks for its proof at trial.

Mr. Lundergan and Mr. Emmons would estimate at least one week for defense proof. As a result,

the defendants suggest allowing three weeks (15 trial days) for trial and setting a new trial date in

September 2019.

9. In summary, the defendants request that the Court (a) declare the case “complex”

and continue the trial currently scheduled for November 13, 2018, (b) set a new deadline of

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November 30, 2018 for filing pretrial defensive motions, and (c) set a new trial date – for

approximately three trial weeks – in September 2019.

WHEREFORE, the defendants, Gerald G. Lundergan and Dale C. Emmons, respectfully

request that the Court grant the relief sought herein.

Respectfully submitted,

TRUE GUARNIERI AYER, LLP

/s/ J. Guthrie True

J. Guthrie True
Whitney True Lawson
Philip C. Lawson
124 Clinton Street
Frankfort, KY 40601
Telephone: (502) 605-9900
Facsimile: (502) 605-9901
E-mail: gtrue@truelawky.com

Marc E. Elias (pro hac vice)

PERKINS COIE LLP
700 13TH Street, NW
Suite 600
Washington, D.C. 20005-3960

Counsel for Defendant, Gerald G.

Lundergan

/s/ Brandon W. Marshall

Patrick F. Nash
Brandon W. Marshall
NASH MARSHALL, PLLC
129 West Short Street
Lexington, KY 40507

Counsel for Defendant, Dale C. Emmons

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing has been served on all counsel
of record this 4th day of October, 2018, by filing a copy of the same with the Electronic Court
Filing System of the United States District Court for the Eastern District of Kentucky.

/s/ J. Guthrie True______________________

Counsel for Defendant, Gerald G. Lundergan