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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

UNITED STATES OF AMERICA )

)

)

v. ) Case No. 3:14-CR-55 JD

)

)

JAMES P. LeDONNE )

GOVERNMENT=S EVIDENTIARY PROFFER SUPPORTING THE 

ADMISSIBILITY OF CO-CONSPIRATOR STATEMENTS

The United States of America, by Clifford D. Johnson, Acting United 

States Attorney for the Northern District of Indiana, respectfully submits 

this written proffer, and moves this Court to admit certain statements 

against the defendant pursuant to Federal Rule of Evidence 104(a), 

801(d)(2)(E) and United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978). 

1. GOVERNING LAW

Federal Rule of Evidence 801(d)(2)(E) provides that a “statement” is not 

hearsay if it “is offered against an opposing party” and “was made by the 

party’s coconspirator during and in furtherance of the conspiracy.” Admission 

of such coconspirator statements against a defendant is proper where the 

government establishes by a preponderance of the evidence that: (1) a 

conspiracy or a joint venture1 existed; (2) the defendant and the declarant 

 1 See Advisory Committee Note to FRE 801 1974 Enactment (“While the rule refers to 

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were members of the conspiracy; and (3) the statements were made during 

the course and in furtherance of the conspiracy. United States v. Cruz-Rea, 

626 F.3d 929, 937 (7th Cir. 2010).2 

Under Santiago, the trial judge must preliminarily determine whether 

statements by a coconspirator of the defendant will be admissible at trial 

under Rule 801(d)(2)(E). In making this determination the judge must decide 

“if it is more likely than not that the declarant and the defendant were 

members of a conspiracy when the hearsay statement was made, and that the 

statement was in furtherance of the conspiracy.” Santiago, 582 at 1134

(quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)). If the 

court determines the statements are admissible, the jury may consider them

for any purpose. United States v. Thompson, 944 F.2d 1331, 1345 (7th Cir. 

1991).

According to Bourjaily v. United States, 483 U.S. 171, 176-81 (1987), 

the court can consider the statements in question (the statements to be 

admitted) to determine whether the three Santiago criteria have been met.

 

a coconspirator, it is this committee’s understanding that the rule is meant to carry forward 

the universally accepted doctrine that a joint venturer is considered as a coconspirator for 

the purposes of this rule even though no conspiracy has been charged.”) (citations omitted). 

2 No Sixth Amendment confrontation issues are posed by the use of a non-testifying 

coconspirator’s statements, offered for their truth against a defendant. Such statements are 

not testimonial, and therefore are not subject to the Confrontation Clause. United States v. 

Nicksion, 628 F.3d 368, 374 (7th Cir. 2010) (citing Davis v. Washington, 547 U.S. 813, 823-

24 (2006) and Crawford v. Washington, 541 U.S. 36 (2004)).

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Seventh Circuit cases construing Bourjaily have held that properly admitted 

hearsay, including statements admitted under the coconspirator exception to 

the hearsay rule, may be used to prove what another person did or said that 

may demonstrate their membership in the conspiracy. See United States v. 

Loscalzo, 18 F.3d 374, 383 (7th Cir. 1994) (“[W]hile only the defendant’s acts 

or statements could be used to prove that defendant’s membership in a 

conspiracy, evidence of that defendant’s acts or statements may be provided 

by the statements of coconspirators.”); United States v. Martinez de Ortiz, 907 

F.2d 629, 633 (7th Cir. 1990) (en banc).

While the Court may consider the proffered statements themselves as 

evidence of both the existence of a conspiracy and a defendant’s participation 

in it, Bourjaily, 483 U.S. at 178, 180; United States v. Harris, 585 F.3d 394, 

398-99 (7th Cir. 2009), the contents of the proffered statements alone are not 

sufficient to establish the existence of a conspiracy and a defendant’s 

participation. There must also be some supporting evidence or facts 

corroborating the existence of the conspiracy and a defendant’s participation. 

Harris, 585 F.3d at 398-99. The evidence showing the existence of a 

conspiracy and a defendant’s membership in it may be either direct or 

circumstantial. See United States v. Johnson, 592 F.3d 749, 754-55 (7th Cir. 

2010); United States v. Irorere, 228 F.3d 816, 823 (7th Cir. 2000).

There is no requirement, for admissibility under Rule 801(d)(2)(E), that 

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the government establish all elements of “conspiracy” such as a meeting of 

the minds and an overt act. United States v. Coe, 718 F.2d 830, 835 (7th Cir. 

1983); United States v. Gil, 604 F.2d 546, 548-50 (7th Cir. 1979). The 

government need only establish the existence of a joint venture for an illegal 

purpose (or for a legal purpose using illegal means) and participation in the 

joint venture by the defendant and the maker of the statement at issue (as 

well as that the statement was in furtherance of the venture). “[I]t makes no 

difference whether the declarant or any other ‘partner in crime’ could 

actually be tried, convicted and punished for the crime of conspiracy.” Gil, 

604 F.2d at 549-50.

While there is thus a distinction between conspiracy law and 

admissibility under Rule 801(d)(2)(E), certain principles of general conspiracy 

law are relevant to the Rule 801(d)(2)(E) inquiries. For instance, “[a] 

conspiracy may exist even if a conspirator does not agree to commit or

facilitate each and every part of the substantive offense.” Salinas v. United 

States, 522 U.S. 52, 63 (1997); see also United States v. Longstreet, 567 F.3d 

911, 919 (7th Cir. 2009); United States v. Jones, 275 F.3d 648, 652 (7th Cir. 

2001). The government need not prove that a defendant knew

each and every detail of the conspiracy or played more than a minor role in 

the conspiracy. See United States v. Curtis, 324 F.3d 501, 506 (7th Cir. 2003). 

Further, a defendant joins a criminal conspiracy if he agrees with another 

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person to one or more of the common objectives of the conspiracy; it is

immaterial whether the defendant knows, has met, or has agreed with every 

coconspirator or schemer. See Longstreet, 567 F.3d at 919; Jones, 275 F.3d at

652. A defendant (or other declarant) may be found to have participated in a 

conspiracy even if he joined or terminated his relationship with other 

conspirators at different times than another defendant or coconspirator. See 

United States v. Noble, 754 F.2d 1324, 1329 (7th Cir. 1985); see also United 

States v. Handlin, 366 F.3d 584, 590 (7th Cir. 2004) (“it is irrelevant when 

the defendant joined the conspiracy, so long as he joined it at some point”). 

Under Rule 801(d)(2)(E), a coconspirator’s statement is admissible against 

conspirators who join the conspiracy after the statement is made. See United 

States v. Sophie, 900 F.2d 1064, 1074 (7th Cir. 1990). A conspirator who has 

become inactive or less active in the conspiracy nevertheless is liable for his 

conspirators’ further statements unless he openly disavows the conspiracy or 

reports it to the police. See United States v. Feldman, 825 F.2d 124, 129 (7th 

Cir. 1987).

The government is not required to prove the identity of the declarant; 

nor must the declarant’s identity be confirmed in the statement itself. See

United States v. Bolivar, 532 F.3d 599, 604-05 (7th Cir. 2008); see also United 

States v. Ayala, 601 F.3d 256, 268 (4th Cir. 2010); United States v. 

Maldonado-Rivera, 922 F.2d 934 (2nd Cir. 1990). Rather, the government 

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need only prove (from the statement, the context and/or other evidence) that 

the declarant was in fact a coconspirator. See Bolivar, 532 F.3d at 604-05. 

The government need not show that the person to whom the statement is 

made was a member of the conspiracy. See United States v. Gupta, 747 F.3d 

111, 124-26 (2d Cir. 2014); United States v. Lloyd, 807 F.3d 1128, 1160-61 

(9th Cir. 2015). 

“Courts have found a wide range of statements to satisfy the ‘in 

furtherance’ requirement.” United States v. Cozzo, 2004 WL 1151630 at *2-3 

(N.D. Ill. 2004) (collecting cases). In general, a statement that is “part of the 

information flow between conspirators intended to help each perform his role” 

satisfies the “in furtherance” requirement. United States v. Alviar, 573 F.3d 

526, 545 (7th Cir. 2009) (quotations and citations omitted); see also United 

States v. Gajo, 290 F.3d 922, 929 (7th Cir. 2002). These include statements 

made:

– to conduct or help to conduct the business of the scheme, United 

States v. Cox, 923 F.2d 519, 527 (7th Cir. 1991); see also United States v. 

Johnson, 200 F.3d 529, 533 (7th Cir. 2000);

– to recruit potential coconspirators, Cruz-Rea, 626 F.3d at 937-38; 

United States v. Haynes, 582 F.3d 686, 705 (7th Cir. 2009), abrogated on other 

grounds by United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012);

– to identify other members of the conspiracy and their roles, Alviar, 

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573 F.3d at 545;

– to plan or to review a coconspirator’s exploits, United States v. Molt, 

772 F.2d 366, 369 (7th Cir. 1985);

– as an assurance that a coconspirator can be trusted to perform his 

role, United States v. Sophie, 900 F.2d 1064, 1073-74 (7th Cir. 1990); see also 

United States v. Bustamante, 493 F.3d 879, 890-91 (7th Cir. 2007);

– to inform and update others about the current status of the 

conspiracy or a conspiracy’s progress (including failures), United States v. 

Rea, 621 F.3d 595, 604-05 (7th Cir. 2010); Alviar, 573 F.3d at 545;

– to control damage to an ongoing conspiracy, Johnson, 200 F.3d at 

533; United States v. Molinaro, 877 F.2d 1341, 1343-45 (7th Cir. 1989); 

United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988);

– to conceal a conspiracy where ongoing concealment is a purpose of the 

conspiracy, Gajo, 290 F.3d at 928-29; United States v. Kaden, 819 F.2d 813, 

820 (7th Cir. 1987); see also United States v. Maloney, 71 F.3d 645, 659-60 

(7th Cir. 1995);

– to reassure or calm the listener regarding the progress or stability of 

the scheme, Sophie, 900 F.2d at 1073; Garlington v. O’Leary, 879 F.2d 277, 

284 (7th Cir. 1989);

– to report conspirators’ status and in turn receive assurances of 

assistance from coconspirators, United States v. Prieto, 549 F.3d 513, 524 (7th 

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Cir. 2008);

– “describing the purpose, method, or criminality of the conspiracy,” 

United States v. Ashman, 979 F.2d 469, 489 (7th Cir. 1992); and 

– to reveal the nature and objective of the conspiracy, United States v. 

Tuchow, 768 F.2d 855, 869 (7th Cir. 1985).

2. THE EVIDENCE REGARDING THE CONSPIRACY AND 

SCHEME

The defendant operated and controlled companies that sold trailers, 

vehicles, and equipment used to repair fiber optic cable. From 2009 through 

2013, the defendant defrauded more than 60 customers by convincing each to 

place orders and provide down payment money. To lure customers into sales, 

the defendant and his employees made false statements about the products 

and delivery dates. When customers complained about lack of delivery, the 

defendant and his employees continued to pass along false information about 

delivery dates. For some customers, the defendant promised refunds, which 

he never made. As part of the scheme, the defendant used the bankruptcy 

system to fend off his customers and other creditors who had obtained 

judgments against him or were owed money by defendant. In the end, the 

victims lost more than 1.5 million dollars. 

This proffer does not identify all of the fraudulent acts committed by 

the defendant and his employees. Rather, as set forth below, the proffer 

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establishes by a preponderance of the evidence the existence of the scheme

(or joint venture) and the roles of some of the conspirators3 who participated 

in it. The evidence includes expected testimony from employees who were 

involved in the scheme, records from companies controlled by the defendant, 

testimony from customers, and communications (email and verbal) from the 

defendant and his employees.

EN4 worked for the defendant in 2011 and 2012. He also loaned money 

to the defendant to keep the businesses operating. EN heard the defendant 

constantly lie to customers before and after orders were placed. At the

defendant’s direction, EN misled customers in various ways. He falsely told 

some customers that trailers and vehicles were in production when nothing 

was occurring. He claimed trucks were out for repairs when that was not 

true. EN also created photos to give the impression that trailers were on the 

assembly line. Using Photoshop, he created fake ads for vehicles giving the 

impression that one of the defendant’s companies owned the vehicle depicted 

in the ad. These flyers were then sent by email to potential customers. In 

fact, the defendant accepted money from customers who wanted to purchase 

the vehicles depicted in the fake ads knowing he did not own the vehicles. 

 3 On December 1, 2016, the government provided a list of unindicted coconspirators 

to the defendant. Each individual had worked for the defendant at various times.

4 The defendant is aware of the names of the persons referred to by initials in this 

document. The government has provided most of the Jencks Act materials. 

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Of course, the defendant never provided those vehicles to the customers. He 

never refunded any money either. 

AK worked for the defendant on two occasions. Near the end of her first 

engagement, she loaned the defendant $30,000 to keep the company running. 

AK knew the defendant continued to accept money from customers while 

knowing he had no parts to build trailers. When customers or potential 

investors visited the business, the defendant told workers to look busy and 

“make sparks”. AK returned to work a second time hoping the defendant 

would return her loan money. During her second stint, she never saw any 

trailers produced. AK helped the defendant sell a truck to a customer in 

which he could not produce the title. She heard the defendant lie to 

customers about delivery dates and the status of trailer production. At the 

direction of the defendant, she lied to customers. 

TK worked for the defendant at various times. Her last period began in 

mid-2013. She had also loaned money to the defendant. During this time, TK

took in at least eight trailer orders and down payment money. She heard the 

defendant tell customers he had items in stock when that was not true. She 

only saw one partially completed trailer leave the facility. The defendant told 

her to lie to customers when they called. She did so. 

DC worked for the defendant in 2012 as a salesman. He helped sell at 

least 20 trailers and vehicles. He never saw one trailer completed. After 

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orders were obtained, the defendant told DC to provide excuses to pass onto 

customers. The defendant also found trucks for sale on the internet and 

instructed DC to create fake ads giving the impression the defendant owned 

the trucks. DC made about ten fake ads which allowed the defendant to sell 

trucks that he did not own. 

PD worked for the defendant on two different occasions. The defendant 

lied to customers in front of PD. 

In October 2009, the defendant sold a 2008 Ford F550 truck to El Oso, 

a business located in Hammond. El Oso financed the transaction and paid 

$64,500 to L6 Systems, a business controlled by the defendant. At the time of 

the sale, the defendant knew the truck belonged to the bankruptcy estate of 

Techline, another business controlled by the defendant. In January 2010, an 

employee of the defendant contacted El Oso and requested the vehicle be 

returned because they had shipped it in “error”. No mention was made about 

the truck belonging to the Techline bankruptcy estate. El Oso returned the 

truck believing another would be provided soon. In February, the defendant 

promised to remedy the situation in one week. He later promised to pay El 

Oso for the loss of use of the truck. In July, the defendant issued a check to El 

Oso but stopped payment before El Oso could deposit the funds. The 

defendant never refunded El Oso’s money. At a L6 Systems bankruptcy 

hearing in January 2011, the defendant lied to the Trustee when he claimed 

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a rogue employee sold the truck without his knowledge. In fact, the defendant 

directed his employees to the sell the truck. L6 Systems records show the 

defendant was involved in the sale. 

In July 2011, the defendant convinced the owner of Spectrum 

Advantage to buy a truck insert that would be used for fiber optic cable 

repair services. The defendant promised to deliver the insert within four 

weeks. Spectrum Advantage wired $11,697 to a bank account controlled by

the defendant. In late August, EN told Spectrum the insert would be 

available on September 9th knowing it could not be delivered. In late October, 

after receiving complaints from Spectrum, the defendant promised a refund. 

A few weeks later, emails from AK falsely claimed the refund check had been 

issued. After the AK email, the defendant told the customer that his 

“corporate” office had not mailed the check. Another email, this time from the 

defendant’s financial partner, claimed the refund would be sent in 5 to 10 

days.5 In fact, Spectrum never received a refund or the insert. 

In July 2012, OPTX, a business in Tennessee, received a fake ad 

prepared by EN giving the impression that the defendant’s business owned 

an aerial boom truck. EN sent the flyer (shown below) knowing the defendant 

 5 There is strong evidence that the emails from AK and the financial partner were 

authored by the defendant. As explained above, it is not necessary to identify the declarant 

as long as the statement furthered the conspiracy. 

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was trying to sell a vehicle he did not own. OPTX agreed to buy the truck for 

$30,000 and wired $15,000 to a bank account controlled by the defendant, 

who told OPTX the truck would be delivered by Labor Day. Before OPTX 

realized it was never getting its truck, EN, at the direction of defendant, tried 

to placate OPTX by reducing the contract price by $5,000. A day later, EN, 

who felt guilty, admitted to OPTX that the truck would not be sent because 

the defendant never owned it. Additional communications were sent from 

EN’s email account claiming the truck would be sent or a refund would be 

provided. In fact, the defendant never produced the truck because it was 

owned

and possessed by a man in Georgia. The photos depicted in the ad were taken 

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in Georgia. The defendant never provided a refund to OPTX either. 

In early August 2013, Spliceworks contacted LG Engineering and spoke 

with TK about buying a trailer. During negotiations, TK reduced the sale 

price and claimed the delivery could be made in two weeks. To lure 

Spliceworks into the sale, the defendant offered another price reduction and 

free shipping. On August 20th, Spliceworks agreed to pay $19,500 and wired 

$9,750 to a bank account controlled by the defendant. The defendant’s 

business records confirm the trailer was to be delivered by September 10th. 

After the wire transfer, TK sent emails reassuring everything was fine. On

September 23rd, the defendant returned an email falsely claiming a critical 

employee had cut his hand and the assembly was “off track.” TK then sent a 

series of emails with false information. After a request from Spliceworks, she 

sent photos of a trailer giving the impression it was completed. The photos 

were fake. In late October, TK claimed the trailer would be sent next week. 

In early November, TK called Spliceworks and claimed the trailer would be 

shipped on Thursday. In fact, Spliceworks never received the trailer or a 

refund. 

In August 2013, CR Action ordered a trailer and wired $6,250 to a bank 

account controlled by the defendant. To induce CR Action into the sale, TK 

claimed it was her first sale and would be delivered if the money was wired 

by 5:00 pm. She also told CR Action she would switch tags on the assembly 

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line to make sure CR Action’s trailer was one of the first out the door. After 

the order, TK and the defendant provided different excuses why the trailer 

was not delivered. No trailer was ever produced. TK also provided at least 

four others customers with shipping dates knowing that nothing had been 

produced.6 

3. COCONSPIRATOR STATEMENTS

The government seeks to introduce the following types of statements

from the defendant’s employees:

a. Verbal and written communications from the employees promising 

the delivery of trailers, trucks, and equipment.

b. Verbal and written excuses from the employees explaining why the 

items could not be produced or delivered. 

c. Verbal and written promises made by the employees telling 

customers that refunds would be provided. 

d. Verbal and written communications from the employees regarding 

the sale of vehicles not owned by the defendant. 

e. Business records from the defendant’s companies regarding the sale 

of trailers, vehicles, and items never produced. “Records that can be 

shown by a preponderance of the evidence to have been made by a 

 6 The government is not detailing each and every proposed coconspirator statement of each 

witness or document but rather is giving a representative sample of the statements from 

each witness and/or document

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member of a conspiracy may be admitted under Rule 801(d)(2)(E) 

even if their precise author cannot be identified.” United States v. 

Lyons, 740 F.3d 702, 719 (1st Cir. 2014).

The statements made by the defendant’s employees were made in 

furtherance of the scheme. They were integral to the conspiracy and its 

success.7

4. ALTERNATIVE THEORY OF ADMISSION 

A number of out-of-court statements will be admissible without regard 

to the coconspirator hearsay rule. For example, the defendant’s own 

statements are admissible against him pursuant to Rule 801(d)(2)(A), 

without reference to the coconspirator statement rule. United States v. 

Maholias, 985 F.2d 869, 877 (7th Cir. 1993). The coconspirator statement 

rule is also not implicated where the relevant verbal declaration is not a 

“statement” within the meaning of Rule 801(a). This rule defines “statement” 

as “a person’s assertion, written assertion, or nonverbal conduct, if the person 

intended it as an assertion.” Thus, a statement which is incapable of 

verification, such as an order or a mere suggestion, is not hearsay and does 

not invoke a Rule 801(d)(2)(E) analysis. See, e.g., Tuchow, 768 F.2d at 868 

 7 As indicated above, the government is not detailing each and every proposed 

coconspirator statement of each witness or document but rather is giving a representative 

sample of the statements from each witness and/or document. 

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n.18. The coconspirator statement rule also does not apply when a 

statement is not being offered for the truth of the matter asserted, and thus 

does not constitute “hearsay” as defined by Rule 801(c). Many of the 

conversations between the employees and customers will be offered to 

establish the existence of a scheme to operate the defendant’s businesses in a 

fraudulent manner. Far from offering the statements for their truth, the 

statements will be shown to be false through independent evidence. See 

Feldman, 825 F.2d at 127; United States v. Gibson, 690 F.2d 697, 700 (9th 

Cir.1982) (“The investors’ testimony was offered to prove the existence of a 

scheme; the statements were not offered for their truthfulness.”)

5. CONCLUSION

In summary, as is evident from their description and as noted above, 

all the above statements made by coconspirators were made in furtherance of 

the conspiracy. Under the case law summarized above, all of these 

statements are properly admissible as coconspirator statements under 

Fed.R.Evid. 801(d)(2)(E). The United States respectfully requests that this 

Court find, based upon this proffer, that coconspirator statements are 

admissible pending the introduction of evidence to support this proffer.

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Respectfully submitted,

CLIFFORD D. JOHNSON

ACTING UNITED STATES ATTORNEY

 By: /s/ Gary T. Bell 

Gary T. Bell

Assistant U.S. Attorney

U.S. Attorney’s Office

5400 Federal Plaza, Ste. 1500

Hammond, IN 46320

/s/Luke Reilander 

Luke Reilander

Assistant U.S. Attorney

M01 Robert A. Grant Federal Bldg.

204 S. Main Street

South Bend, IN 46601

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CERTIFICATE OF SERVICE

I hereby certify that on April 13, 2017, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which sent 

notification of such filing to all counsel of record.

By: / S / Lorene B. Nelson 

Lorene B. Nelson

Legal Assistant

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