1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA,
v. JONATHAN DARNEL (2), Defendant. Criminal Action No. 22

- 0 96

- 2 (CKK)

M EMORANDUM OPINION AND ORDER ( September 5 , 2023) Before the Court is the Government ’ s [384] Motion in Limine Seeking Admission of Co

Cons pirator Statements ( “ Motion ” or “ Mot. ” ) . The Government requests that the Court hold an October 23, 2020 Facebook post by Defend ant Handy admissible as non

- hearsay when offered against Defend ant Darnel. In th e 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 Defen dant Darnel “ have been co

- leading activism /protests for 6ish years

no w so to see this cu lmination of our work together as a Traditional Res cue is really just cool to

see. ” I d. It appears that the Governm en t intends to offer the assertion that the charged blocka de

was the “ cul mination ” of joint efforts by Defendants Handy and Darnel for the truth of that assertion. B ecause 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. According ly, the Government ’ s [384] Motion in Limine Seeking Admission of Co

- Cons pirator Statements is DENIED

. A. Background Although the Court assumes the re ader ’s familiar ity with this matter, the Court briefly reiterates its factual and procedural background. The operative indictment charges all ten Defendan ts with successfully s chem ing to disrupt access to a reproductive health clinic in the2 District of Columbia on October 22, 2020. Id. at 5. The Indictment alleges that Defendant Handy orchestrated this conspir acy, 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 rop e, which Defendants Smith, Harlow, Marshall, Hinshaw, and Bell us ed 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 ’ e ntry shortly thereafter. See id. at 4. According to the Indictm ent, 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 enter ing the clinic[.]” Id. at 6. The Court severed the c ase into three trials : (1) a n August 9, 2023 trial featuring Defend ants Handy, Hinsh aw, Idoni, Goodman, an d Geraghty ; (2) a Septemb er 6, 2023 trial featuring Defendants Darnel, Marshal l , and Bell ; and (3) a n October 23, 2023 trial featuring Defendant Harl ow. The t enth Defendant, Jay Smith, entered a p lea of “ guilty ” on a s uperseding 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 c harge in the operative indictment , including

a special finding that they used force against p ersons or prope rty to achi eve their unlawful ends. The Government has now moved in limine in p rep aration for th e second trial set to begin on September 6, 2023.3 B. D iscussion The part ies largely agree as to the law governing this inquiry. Although out

- of

- court statements offered for their truth are usually inadmissible hearsay, statements “ mad e by the party ’ s co - conspirator during and in the furtherance of th e conspiracy ” are adm issib le as against

a co - conspirator . Fed. R. Evid. 801(d)(2) (E) . Before holding a statement admissible under this provision, the Court mu st find by a pre p onderance of the evidence that: (1) a conspira cy existed, (2) that the defendant and the declarant were involved in that conspiracy, and (3) that the de clarant ’ s statement was made in the course and in further ance of that conspiracy. See Bourjaily v. Un ite d States , 483 U.S. 171, 175

- 76 (1987); United States v. Brocken borrugh , 575 F.3d 726, 735 (D.C. Cir. 20 09). As to the first element, the Co urt 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 dec larant were involv ed in th e c onspiracy

. ” United States v. Lorenzana

Cordon , Crim. A. No. 03

- 331

- 13 , - 14 (CKK), 201 6 WL 1166 4060, a t *1 (D. D. C. Jan. 21, 2016). Pursuant to Federal Rule of Evi dence 104(a), the Court is n ot limited to admissible evidence in answering the antecedent question of whether the de clarant was engaged in a conspiracy with the defendant. See United States v. Khatalla h , 278 F. Supp. 3d 1, 4

- 5 (D.D.C. 2017). The Government argue s that the statement here was part of “ an overarching conspiracy between the Defendants to . . . blo ckade other locations in the future. ” Mot. at 3. For the
p urposes of admissibility, the sta tement 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 defend ant and their co - c onspirator were “ actin g in concert toward [ some ] common goal, ” lawful or unl awful. Id. ( quoting United States v. Wei sz , 718 F. 2d 413, 433 (D.C. Cir.4 1983) ). During the preceding trial, the Gov ernment presented evidence of Defend ants Handy and Da rnel working toge ther in the blo ckade of a Maryland reproductiv e health clinic on Jan uary 30, 2021, appro ximately six months after the charged clinic blo ckade. Additionally, Defe ndant s Handy and Darnel were ea ch found guilty of trespass ing on November 16, 2021 at a Virginia reproductive health clinic

. Comm onwealth v. Darnel , Case No. GC2 1002184

- 00 (Alexandria Va. Dist. Ct. July 1 2, 2022); Commonwealt h v. Handy , Case No. GC21002180

- 00 (Alex andria Va. Dist. Ct. July 12, 2022). When combined with the substantial evidence of cons piracy in advance of and during the charged block ade, there is more than suf ficient 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 clini cs 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 , 55 9 F.3d 31, 119 (D.C. Cir. 1976). Nor do “ bragging ” or “ descriptive comments ” fit the furtherance requirement. Mu el ler & Kir kpatrick, 4 Fed. Evid. § 8:61 ( West 2023) (collecting cases). Bragga docio , in o ther words, does “ not link with the idea of shared responsibility ” in a common venture that underlies the co

conspirator rule on hearsay. See id. To be sure, there are exceptions to this general rule. Where celebration of past success “ can be reas onably interpreted as encouraging a co

- conspirator

o r 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. 1 988)

. Here, the Government claims that this is the rare case where celebration of prior conduct w as aimed at recruiting others to the ongoing conspiracy. Mot . at 6.5 In the Court ’ s view, there is no indication in the Facebook post its elf that Defend ant Handy was bragging in order to recruit other s to as sist i n the conspiracy or to assure others that the conspiracy would remain feasible. See , e.g. , United States v. Sie gelman , 640 F.3d 11 59, 1181 (11 th Cir. 2011) ( statement by com pany executive to lobbyist that first bribe was successful

wa s in furtherance of b ribery conspiracy between executive and politician where executive expected t hat lobbyist would facilitate second bribe); United States v. Ragland , 555 F.3d 706, 714 (8 th Cir. 2009) (statements between drug dealers bragging about source of suppl y was in fu rthera nce of conspiracy to exchange drugs source of drugs “ goes to the very purpose and viability of the conspiracy ” ). Had Defend ant Handy intended her Facebook pos t to recruit others

or boost the confidence of co

- conspirators, she could have explicitly i nvited 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
cert ainly knew how to recruit ot hers for clinic blo ckades. The Facebook post here, however , is
pure celebration of prior conduct. Bra gg ing 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 (6 th Cir. 2009) ( “ brag[gin g] abou t [] financial holdings ” by one drug dealer to another does not in itself further a d rug conspiracy). As such, t he G overnment has not sustained its burden to demonstrate that the Facebook post was in furtherance of a broader conspiracy to blocka de other
rep roductive health clinics in the future. // // // //6 According ly, and for the foregoing reasons, it is hereby ORDERED , that the Government ’ s [384] Motion in Limine Seeking Admission of Co

Cons pirator Statements is DENIED

. SO ORDE RED

. Dated: Se pte mber 5 , 2023 /s/ COLLEEN KOLLAR

- KOTELLY United States District Judge