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Jun 13, 2016 - 3 particular way. See United States v. Blakeney, 942 F.2d 1001 (6 th .... as democratic judge for the car
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 DEFENDANT’S 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 Risner’s 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

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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 McCarty’s 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 Government’s 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 Risner’s motion in limine. [R. 109]. In summary, a testifying co-conspirator’s 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 witness’s 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) (witness’s prior incarceration with defendant explains how they had the opportunity to plan the current crime). Scottie McCarty’s 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

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particular way. See United States v. Blakeney, 942 F.2d 1001 (6th Cir. 1999) (witness’s 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 McCarty’s history of election fraud with this core group completes the story of the current case. Scottie McCarty’s 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 McCarty’s 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

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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 same—the 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:

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s/ Kenneth R. Taylor Assistant United States Attorney 260 West Vine Street Lexington, Kentucky 40507-1612 (859) 685-4874 FAX (859) 233-2747 [email protected]

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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

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Taylor, Ken (USAlffE)

From: Sent To: Cc Subject

Taylor, Ken (USAKYE) Thursday, May 26,2015 2:09 PM '[email protected]'; Curtis Law ([email protected]); 'Jason Nemes'; [email protected]'[email protected]'; [email protected]'; willis coffey ([email protected])

'[email protected]'; 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

o

.fD-302

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FEDERAL BTJREAU OF IIYVESTIGATION

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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'

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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 me€ting. 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

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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 to€et 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).

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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.

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