CRIME

Lindemuth bankruptcy attorney permitted to testify in Topeka businessman’s bankruptcy fraud case

Lindemuth 117-count criminal case starts Nov. 29 in federal court

Steve Fry
Topeka developer Kent Lindemuth peaks out of the doors of a federal courthouse June 1, 2016, after his pre-trial hearing on federal fraud charges. (2016 file photo/The Capital-Journal)

An attorney representing Topeka businessman Kent D. Lindemuth in his multimillion-dollar bankruptcy case in federal court will shift over to Lindemuth’s more than 100-count criminal case in federal court when it begins Nov. 29.

But bankruptcy attorney Neil Sader will sit in the witness chair to testify, not at the defense table to provide legal advice to Lindemuth.

Despite objections from federal prosecutors, Sader will be Lindemuth’s expert witness on bankruptcy issues, U.S. District Judge Daniel Crabtree ruled Friday, 12 days before the start of the criminal trial.

Crabtree also ordered the defense to provide prosecutors a “written summary of his expert’s opinions with the bases and reasons for those opinions” on or before Nov. 27.

Lindemuth, 65, is charged with 107 counts of bankruptcy fraud; six counts of money laundering; one count each of perjury and receipt of ammunition; and two counts of receipt of firearms. Three of the counts will be tried in a second trial shortly after the first ends.

A total of 2,166 other firearms owned by Lindemuth, which are valued at $1.4 million, earlier were recovered from a south Topeka storage site. Lindemuth is charged with 103 counts of bankruptcy fraud in the purchase of 103 of the 2,166 guns, which weren’t disclosed as part of his bankruptcy estate, according to court records.

Lindemuth’s attorneys are William Skepnek and Kevin Babbit, both of Lawrence.

Lindemuth has an ongoing case in U.S. Bankruptcy Court. While in bankruptcy, his assets are controlled by the bankruptcy trustee, who Lindemuth has said wouldn’t release funds from his estate to hire an expert witness in bankruptcy law during the criminal trial.

But Sader, who represented Lindemuth in his bankruptcy proceedings, offered to testify as an expert witness without charge, the judge wrote. Lindemuth’s defense attorneys filed a court document naming Sader as the expert on Nov. 10, 17 days after the Oct. 24 deadline.

But filings don’t contain the required description of the expert’s opinions and the basis for them, and instead lists only general subjects Sader will discuss.

“The disclosure does not permit the government (prosecutors) to complete its pretrial preparation properly,” Crabtree wrote.

The judge ordered Lindemuth’s lawyers to provide those expert opinions to prosecutors, saying it “does not appear that Mr. Lindemuth has acted in bad faith.” Prosecutors won’t be prejudiced by receiving the expert witness summary two days before trial, the judge wrote.

Blocking Sader from testifying as an expert witness during the criminal trial because Lindemuth was untimely would be unduly harsh, Crabtree ruled. He also said it wouldn’t be a conflict of interest for Sader to testify as an expert witness in his client’s criminal trial.

Even if Lindemuth shared confidential information with Sader, “it does not warrant disqualification” of Sader as an expert witness, the judge ruled. “That (attorney-client) privilege belongs to Mr. Lindemuth — not the government (prosecutors).”

Expert testimony about how a bankruptcy case is developed, filed and typically proceeds is proper for expert opinion, Crabtree said, but testimony about Lindemuth’s thought process while a debtor in the bankruptcy cases is prohibited.

On Aug. 15, Crabtree granted Lindemuth an extra 15 weeks to prepare for the trial. In granting the extra time, the judge weighed four factors, concluding “the ends of justice favor one last continuance” to start the trial in late November.

In August, Lindemuth said he couldn’t afford to hire expert witnesses, and without them, that would impair “the quality of his defense substantially,” the judge wrote.

“This factor favors a continuance,” the judge wrote.

Without more time and funds to retain experts, Lindemuth’s defense attorneys contended, they would be forced into a trial “they cannot be adequately prepared” for, they said in a motion.

Contact reporter Steve Fry at (785) 295-1206 or @TCJCourtsNCrime on Twitter.