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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, 

v.

JONATHAN DARNEL (2),

 Defendant.

Criminal Action No. 22-096-2 (CKK)

MEMORANDUM OPINION AND ORDER

(September 5, 2023)

Before the Court is the Government’s [384] Motion in Limine Seeking Admission of CoConspirator Statements (“Motion” or “Mot.”). The Government requests that the Court hold an 

October 23, 2020 Facebook post by Defendant Handy admissible as non-hearsay when offered

against Defendant Darnel. In the post, Defendant Handy celebrates Defendant Darnel’s arrest, 

apparently in connection with the conduct charged in the operative indictment. ECF No. 384-1. 

She writes that she and Defendant Darnel “have been co-leading activism/protests for 6ish years 

now so to see this culmination of our work together as a Traditional Rescue is really just cool to 

see.” Id. It appears that the Government intends to offer the assertion that the charged blockade 

was the “culmination” of joint efforts by Defendants Handy and Darnel for the truth of that 

assertion. Because the Court cannot find by a preponderance of the evidence that the statement 

was in furtherance of the conspiracy to which it purportedly related, the Court holds that the 

statement is hearsay. Accordingly, the Government’s [384] Motion in Limine Seeking 

Admission of Co-Conspirator Statements is DENIED. 

A. Background

Although the Court assumes the reader’s familiarity with this matter, the Court briefly 

reiterates its factual and procedural background. The operative indictment charges all ten 

Defendants with successfully scheming to disrupt access to a reproductive health clinic in the
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District of Columbia on October 22, 2020. Id. at 5. The Indictment alleges that Defendant Handy 

orchestrated this conspiracy, directing her co-Defendants to undertake various preparations to 

blockade the clinic. Id. For example, Defendant Harlow allegedly brought with her a duffle bag 

containing chain and rope, which Defendants Smith, Harlow, Marshall, Hinshaw, and Bell used to 

lock the clinic’s doors. Id. at 6. For her part, Defendant Handy allegedly made an appointment at 

the clinic under a false name in order to ensure her entry and her co-conspirators’ entry shortly 

thereafter. See id. at 4. According to the Indictment, at least Defendant Smith’s entry was 

particularly violent, causing a nurse “to stumble and break her ankle.” Id. at 5. Defendant Handy 

then purportedly directed others to blockade the clinic’s doors, locking staff in and potential 

patients out. See id. at 5-6. Meanwhile, Defendant Darnel allegedly live-streamed the incursion, 

telling listeners that he and co-conspirators had “intervene[d] physically with their bodies to 

prevent women from entering the clinic[.]” Id. at 6. 

The Court severed the case into three trials: (1) an August 9, 2023 trial featuring 

Defendants Handy, Hinshaw, Idoni, Goodman, and Geraghty; (2) a September 6, 2023 trial 

featuring Defendants Darnel, Marshall, and Bell; and (3) an October 23, 2023 trial featuring 

Defendant Harlow. The tenth Defendant, Jay Smith, entered a plea of “guilty” on a superseding 

information on March 1, 2023. A jury returned a verdict as to the first group on August 29, 2023, 

finding each Defendant in that group guilty of each charge in the operative indictment, including 

a special finding that they used force against persons or property to achieve their unlawful ends. 

The Government has now moved in limine in preparation for the second trial set to begin on 

September 6, 2023. 
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B. Discussion

The parties largely agree as to the law governing this inquiry. Although out-of-court 

statements offered for their truth are usually inadmissible hearsay, statements “made by the 

party’s co-conspirator during and in the furtherance of the conspiracy” are admissible as against 

a co-conspirator. Fed. R. Evid. 801(d)(2)(E). Before holding a statement admissible under this 

provision, the Court must find by a preponderance of the evidence that: (1) a conspiracy existed, 

(2) that the defendant and the declarant were involved in that conspiracy, and (3) that the 

declarant’s statement was made in the course and in furtherance of that conspiracy. See 

Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); United States v. Brockenborrugh, 575 

F.3d 726, 735 (D.C. Cir. 2009). 

As to the first element, the Court must first find “the Government has offered [sufficient] 

independent evidence apart from the statements themselves that a conspiracy exists and that the 

Defendant and the declarant were involved in the conspiracy.” United States v. LorenzanaCordon, Crim. A. No. 03-331-13, -14 (CKK), 2016 WL 11664060, at *1 (D.D.C. Jan. 21, 2016). 

Pursuant to Federal Rule of Evidence 104(a), the Court is not limited to admissible evidence in 

answering the antecedent question of whether the declarant was engaged in a conspiracy with the 

defendant. See United States v. Khatallah, 278 F. Supp. 3d 1, 4-5 (D.D.C. 2017). 

The Government argues that the statement here was part of “an overarching conspiracy 

between the Defendants to . . . blockade other locations in the future.” Mot. at 3. For the 

purposes of admissibility, the statement need not be made in furtherance of the charged 

conspiracy, or even an unlawful conspiracy. Gewin, 471 F.3d at 201. The key question is 

whether the defendant and their co-conspirator were “acting in concert toward [some] common 

goal,” lawful or unlawful. Id. (quoting United States v. Weisz, 718 F.2d 413, 433 (D.C. Cir. 
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1983)). During the preceding trial, the Government presented evidence of Defendants Handy 

and Darnel working together in the blockade of a Maryland reproductive health clinic on January 

30, 2021, approximately six months after the charged clinic blockade. Additionally, Defendants 

Handy and Darnel were each found guilty of trespassing on November 16, 2021 at a Virginia 

reproductive health clinic. Commonwealth v. Darnel, Case No. GC21002184-00 (Alexandria 

Va. Dist. Ct. July 12, 2022); Commonwealth v. Handy, Case No. GC21002180-00 (Alexandria 

Va. Dist. Ct. July 12, 2022). When combined with the substantial evidence of conspiracy in 

advance of and during the charged blockade, there is more than sufficient material for the Court 

to conclude by a preponderance of the evidence that the charged blockade was but one piece of a 

larger conspiracy between Defendants Handy and Darnel to execute unlawful, obstructive 

conduct at other reproductive health clinics in the future. 

Whether the Facebook post at issue was made in furtherance of this broader conspiracy is 

a much closer question. As a general rule, “mere narratives of past events” are not “statements 

made in furtherance of [a] conspiracy.” United States v. Haldeman, 559 F.3d 31, 119 (D.C. Cir. 

1976). Nor do “bragging” or “descriptive comments” fit the furtherance requirement. Mueller & 

Kirkpatrick, 4 Fed. Evid. § 8:61 (West 2023) (collecting cases). Braggadocio, in other words, 

does “not link with the idea of shared responsibility” in a common venture that underlies the coconspirator rule on hearsay. See id. To be sure, there are exceptions to this general rule. 

Where celebration of past success “can be reasonably interpreted as encouraging a co-conspirator 

or other person to advance the conspiracy,” that statement can be in furtherance of the 

conspiracy. See United States v. Tarantino, 846 F.2d 1384, 1412 (D.C. Cir. 1988). Here, the 

Government claims that this is the rare case where celebration of prior conduct was aimed at 

recruiting others to the ongoing conspiracy. Mot. at 6. 
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In the Court’s view, there is no indication in the Facebook post itself that Defendant 

Handy was bragging in order to recruit others to assist in the conspiracy or to assure others that 

the conspiracy would remain feasible. See, e.g., United States v. Siegelman, 640 F.3d 1159, 

1181 (11th Cir. 2011) (statement by company executive to lobbyist that first bribe was successful 

was in furtherance of bribery conspiracy between executive and politician where executive 

expected that lobbyist would facilitate second bribe); United States v. Ragland, 555 F.3d 706, 

714 (8th Cir. 2009) (statements between drug dealers bragging about source of supply was in 

furtherance of conspiracy to exchange drugs source of drugs “goes to the very purpose and 

viability of the conspiracy”). Had Defendant Handy intended her Facebook post to recruit others 

or boost the confidence of co-conspirators, she could have explicitly invited others to support the 

unlawful portions of her and Defendant Darnel’s efforts to end abortion in the United States. As 

the leader of a pro-life advocacy group, and as the evidence demonstrated in the last trial, she 

certainly knew how to recruit others for clinic blockades. The Facebook post here, however, is 

pure celebration of prior conduct. Bragging for the sake of bragging is not a statement in 

furtherance of an underlying conspiracy. See, e.g., United States v. Warman, 578 F.3d 320, 339 

(6th Cir. 2009) (“brag[ging] about [] financial holdings” by one drug dealer to another does not 

in itself further a drug conspiracy). As such, the Government has not sustained its burden to 

demonstrate that the Facebook post was in furtherance of a broader conspiracy to blockade other 

reproductive health clinics in the future. 

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Accordingly, and for the foregoing reasons, it is hereby 

ORDERED, that the Government’s [384] Motion in Limine Seeking Admission of CoConspirator Statements is DENIED.

SO ORDERED. 

Dated: September 5, 2023

 /s/

COLLEEN KOLLAR-KOTELLY

United States District Judge