USA v. Jones et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 24-20070-DDC
NEWTON JONES (01),
WILLIAM CREEDEN (02),
KATERYNA JONES (03),
LAWRENCE MCMANAMON (05),
Defendants.
MEMORANDUM & ORDER
The government, on Friday before a Monday trial, filed a Supplement to its Amended
Motion for Admission of Coconspirator Statements (Doc. 288). The Supplement identifies the
statements the government seeks to admit under Fed. R. Evid. 801(d)(2)(E). Doc. 365. For each
statement, the Supplement, in chart format, provides the exhibit number; statement date; witness;
statement type; declarant(s); against whom the government seeks to offer the statement;
statement summary; and how the statement furthered the alleged conspiracy. Doc. 365-1. The
government’s chart supplies the missing puzzle piece for the court to complete its preliminary
ruling that decides whether the proffered statements qualify for the Rule 801(d)(2)(E) exception
to the hearsay rule.
The court already ruled on the macro-level of the James analysis—i.e., whether the
government could demonstrate that a conspiracy existed and that defendants were members of
that conspiracy. Doc. 340 at 1–2. It concluded that the government’s James hearing showing
sufficed to provide “some independent evidence” that a conspiracy involving defendants Newton
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Jones and William Creeden existed. Id. at 18 (quoting United States v. Stein, 985 F.3d 1254,
1269 (10th Cir. 2021)). The James hearing’s independent evidence didn’t suffice to loop in
defendants Lawrence McManamon and Kateryna Jones, however. Id.
The court reserved any ruling on the micro-level James analysis—i.e., whether particular
statements were made in the course and in furtherance of the conspiracy—until the government
had provided the specific statements it sought to qualify as 801(d)(2)(E) exceptions to the
hearsay rule. Id. at 2. 	Now, it has. So, the court undertakes—below—analysis of the specific
statements. By way of reminder here at the analysis’s outset, the government describes the
conspiracy charged in this case as follows: Defendants engaged in a criminal enterprise “to
enrich the members of the conspiracy, embezzle union funds, commit wire fraud, and embezzle
from pension and welfare funds.” Doc. 288 at 8. One of the government’s theories of
conspiracy includes embezzlement by extravagance—i.e., misusing funds belonging to the
International Brotherhood of Boilermakers (IBB) for personal rather than IBB’s benefit.
The court begins with the legal standard governing the exception to the hearsay rule for
co-conspirator statements under Rule 801(d)(2)(E).
I. 	Legal Standard
Under Fed. R. Evid. 802, hearsay statements generally are inadmissible. But Fed. R.
Evid. 801(d)(2)(E) excludes a statement from the general hearsay rule where it “was made by the
party’s coconspirator during and in furtherance of the conspiracy.” Rule 801(d)(2) also clarifies
that the statement doesn’t “by itself establish . . . the existence of the conspiracy or participation
in it[.]” Instead, before “admitting statements into evidence under the coconspirator exception to
the hearsay rule, the district court must determine by a preponderance of the evidence that
(1) a conspiracy existed,
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(2) the declarant and the defendant were both members of the conspiracy, and
(3) the statements were made in the course of and in furtherance of the conspiracy.”
United States v. Alcorta, 853 F.3d 1123, 1137 (10th Cir. 2017). 	“The government, as the
offering party, bears the burden of proving these predicate findings.” United States v. Majeed,
No. 21-20060-JAR, 2024 WL 3580664, at *1 (D. Kan. July 30, 2024). The court takes up the
three requisite prongs, below.
II. 	Existence of the Conspiracy
The court already addressed the first Alcorta prong—a conspiracy existed—in its macro-
level analysis. Doc. 340. And, it concluded, the government had adduced sufficient independent
evidence to demonstrate a conspiracy existed for N. Jones and Creeden. Id. at 17. Now, the
court finds that independent evidence, coupled with the hearsay statements themselves, makes it
more likely than not that a conspiracy existed. In short, the government has satisfied the
preponderance of the evidence standard to show the existence of a conspiracy for N. Jones and
Creeden.
So concluding, the court pairs the independent evidence identified in its previous Order
(Doc. 340) with the proffered statements themselves. Recall that to prove a conspiracy the
government must demonstrate four elements: (i) an agreement to violate the law; (ii) a
defendant’s knowledge of the essential objectives of the conspiracy; (iii) a defendant’s knowing
and voluntary participation in it; and (iv) interdependence. United States v. Caldwell, 589 F.3d
1323, 1329 (10th Cir. 2009) (quoting United States v. Sells, 477 F.3d 1226, 1235 (10th Cir.
2007)). For each of these four existence-of-a-conspiracy prongs, the court recites, first, the
independent evidence analyzed in its earlier Order. Then, the court identifies hearsay statements
that likewise support each prong. With the evidence and statements thus combined, the court
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concludes the government has demonstrated the conspiracy’s existence. Start with the first
prong—an agreement to violate the law.
The court’s earlier Order found, first, sufficient independent evidence of a tacit, mutual
agreement to violate the law. Doc. 340 at 7–9. Remember that “the government does not have
to prove an express or formal agreement was made. It merely has to show the coconspirators
tacitly came to a mutual understanding.” United States v. Rutland, 705 F.3d 1238, 1250 (10th
Cir. 2013) (quotation cleaned up). Indeed, an “agreement may be inferred from the facts and
circumstances of the case, including frequent contacts among the defendants and from their joint
appearances at transactions and negotiations.” Sells, 477 F.3d at 1236 (quotation cleaned up).
The court’s macro-level analysis focused on defendants’ allegedly offending transactions
discussed by the government’s witnesses—such as the backpay and other salary and benefits that
the IBB had paid K. Jones; the use of IBB American Express cards for personal purchases; and
abuses of the healthcare and retirement plans for less-than-full-time work. Id. By adding some
of the proffered statements to this independent evidence, the government satisfies the
preponderance of the evidence standard to demonstrate an agreement to violate the law.
Specifically, some of the proffered statements suggest similar transactions—all revealing
an alleged misuse of IBB funds for personal benefit. According to the proffered statements, for
example, N. Jones told K. Stapp to pay K. Jones retroactively for work allegedly done in
Ukraine. Doc. 365-1 at 16. Plus, Creeden acknowledged that their American Express card use
possibly violates Department of Justice regulations. Id. at 3. Finally, N. Jones directed IBB
healthcare coverage for Brian Daly—a non-employee—and later continued that coverage for his
widow—for life. Id. at 6. Coupled together, the independent evidence and statements
demonstrating IBB transactions for personal benefit persuade the court that the government has
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shouldered its preponderance-of-the-evidence burden on this first existence-of-a-conspiracy
prong.
Next, the court’s earlier Order addressed the second and third conspiracy prongs together.
They assess the defendant’s knowledge of the conspiracy’s essential objectives and his knowing,
voluntary participation in it. Doc. 340 at 10. Recall that the “government isn’t required to
present direct evidence of the defendant’s knowledge of the conspiracy’s objective or of the
defendant’s knowing and voluntary participation in the conspiracy. Instead, circumstantial
evidence will suffice.” United States v. Arnold, 696 F. App’x 903, 908 (10th Cir. 2017) (citing
United States v. Small, 423 F.3d 1164, 1182–83 (10th Cir. 2005)). The court’s macro-level
analysis thus highlighted circumstantial evidence including, for starters, the “highly implausible
scenario” that one could receive full-time employee benefits for little to no work. Id. at 12–13.
And the court identified independent evidence that N. Jones and Creeden repeatedly authorized
expenditures jointly—and for Jones family members—citing the expenses they approved for
Cullen Jones to attend film school in Canada on IBB’s dime. Id. at 13–14.
The proffered statements likewise speak to full-time benefits for little-to-no-pay.
Consider, for instance, outside accounting firm Legacy Professionals’ query about N. Jones’s
working hours and bonuses paid by Bank of Labor. Doc. 365-1 at 15. The proffered statements
also demonstrate both joint approvals and IBB expenditures to benefit family members. For
example, one proffered communication reveals N. Jones and Creeden discussing and together
approving a private jet package spending more than half a million dollars. Id. at 18. Another
proffered communication suggests that N. Jones permitted a family member—Shae Jones—to
travel on IBB’s private jet, at a cost of $6,800, by designating her a “temp employee.” Id. at 14.
Adding these proffered statements to the independent evidence already evaluated, the court
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concludes that the government has satisfied—by a preponderance of the evidence—the second
and third existence-of-a-conspiracy prongs. One final prong remains.
Last, the court’s earlier Order assessed the government’s showing of interdependence—
the last existence-of-a-conspiracy prong. Remember that interdependence inheres when “each
alleged coconspirator depends on the operation of each link in the chain to achieve the common
goal. In essence, the defendant’s actions must facilitate the endeavors of other alleged
coconspirators or facilitate the venture as a whole.” United States v. Evans, 970 F.2d 663, 671
(10th Cir. 1992) (quotation cleaned up). The court’s analysis homed in on IBB’s expenditure-
approval structure—as testified to by the government’s witnesses—to conclude some
independent evidence demonstrated interdependence. Doc. 340 at 15. Specifically, the court’s
macro-level analysis cited testimony about IBB’s constitutional provision, Article 5.2, that
requires IBB’s international president and international secretary-treasurer to authorize all
nonroutine expenditures. Id. This structure, the court concluded, provides some independent
evidence of interdependence because each allegedly unnecessary or lavish expenditure needed
joint approval by N. Jones and Creeden.
The government’s proffered statements also allude to this expenditure-approval structure.
For example, an email from K. Stapp about continuing insurance coverage for Brian Daly’s
spouse after his death indicated that both N. Jones and Creeden had to approve the coverage.
Doc. 365-1 at 10. As with the other three existence-of-a-conspiracy prongs, the government’s
proffered statements thus couple with its independent evidence to satisfy the preponderance of
the evidence standard.
The court concludes, therefore, that the government has demonstrated the existence of a
conspiracy—on all four of the requisite prongs—by a preponderance of the evidence. So, the
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court shifts to the next step in the Rule 801(d)(2)(E) analysis: membership in the conspiracy.
Recall that admitting hearsay statements under Rule 801(d)(2)(E) requires the government to
show that both the declarant and the defendant are members of the conspiracy. Alcorta, 853 F.3d
at 1137. The court addresses, first, the various declarants’ membership in the conspiracy and,
then, the various defendants’ membership.
III. 	Membership in the Conspiracy
“A person is a member of a conspiracy if he was aware of the common purpose, willingly
participated in the conspiracy, and intended to advance the purpose of the conspiracy.” Rutland,
705 F.3d at 1251.
A. 	Declarant’s Membership
In its earlier Order, the court explicitly reserved any ruling on declarants’ membership in
the conspiracy because it didn’t yet know who the declarants were. Id. at 17 n.3. Now, the court
ties up that loose end. It finds, first, that the government identifies four declarants who went
unsupported by the James hearing evidence. That is, the government failed to demonstrate they
were members of the conspiracy. The court thus denies the government’s request to find
statements by these declarants satisfy Rule 801(d)(2)(E) pretrial. Next, the court concludes three
other declarants—though not addressed in the court’s earlier Order—qualify as members of the
conspiracy. So, statements by these three declarants—and those by N. Jones and Creeden—clear
Alcorta’s declarant-membership prong. Start with the four declarants who the government
hasn’t shown were conspiracy members.
1. 	Non-Member Declarants
Recall that the government’s James showing presented sufficient independent evidence to
demonstrate Newton Jones and William Creeden’s membership in a conspiracy—but not
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Lawrence McManamon and Kateryna Jones’s membership. Doc. 340 at 18. So, any proffered
statements where McManamon or K. Jones are the declarant can’t satisfy Rule 801(d)(2)(E)—at
least not based on the pretrial showing. But that’s not all. The government also made no attempt
to proffer independent evidence at the James hearing of two other declarants’ membership: Tim
Simmons and A. Wiser. See Doc. 365-1 at 3, 7. Indeed, the James hearing transcripts reveal that
Wiser’s name never came up—not once. See generally Doc. 293; Doc. 330. And the
government’s lead-investigator witness only mentioned Tim Simmons twice—to identify his
previous and current positions in the International Brotherhood of Boilermaker (IBB)’s
International Executive Council. Doc. 293 at 115, 116 (Hr’g Tr. 115:15–16, 116:4–6). 	The
government’s other witness, Paula Musil, never discussed Simmons at all. See generally Doc.
330.
The court thus denies the government’s request to find—pretrial—that statements by
declarants McManamon, K. Jones, Simmons, or Wiser satisfy Rule 801(d)(2)(E). This finding
implicates the following exhibit numbers from the government’s Supplement: Exhibits 66, 174,
176, 221, 241, 246, 247, 249, and 260. Doc. 365-1 at 2, 19, 23–25, 27. And it implicates several
proffered oral statements: by declarant Simmons in February 2023, by declarant McManamon in
2023, and by declarant Wiser in 2020-2023 and 2019-2022. 	Id. at 3, 7.
2. 	Member Declarants
The government’s Supplement also identifies three other declarants whose membership
in the conspiracy wasn’t addressed in the court’s earlier Order—namely, K. Stapp, W. Fairley,
and T. Brown. Id. at 3, 5–11, 13–14, 16, 19, 21–22. Unlike the declarants in the previous
section, however, the government introduced plea agreements for all three of these declarants.
And those plea agreements suffice to establish K. Stapp, Fairley, and Brown’s membership in the
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conspiracy.1 See Doc. 79 (Kathy Stapp’s plea agreement); Doc. 257 (Warren Fairley’s plea
agreement); United States v. Brown, 24-20047-DDC-1 (D. Kan. May 23, 2024), ECF 13 (Tyler
Brown’s plea agreement from a separate criminal case premised on similar allegations).
Start with K. Stapp’s agreement. She pleaded guilty to knowing participation in a
racketeering conspiracy. Doc. 79 at 1. 	And the factual basis of her agreement outlines how K.
Stapp “functioned as the day-to-day financial officer in the Boilermakers Union for several
years . . . and was responsible for implementing all of Creeden’s directives.” Id. at 3. And “she
approved expenses that she knew were not necessary under the terms of the Boilermakers Union
Constitution and otherwise had no legitimate union purpose.” Id. K. Stapp’s plea agreement
thus places her squarely inside IBB’s expenditure-approval structure that the court found so
indicative of N. Jones and Creeden’s membership in the conspiracy. See Doc. 340 at 14–15.
Her plea agreement thus indicates K. Stapp “was aware of the common purpose, willingly
participated in the conspiracy, and intended to advance the purpose of the conspiracy.” Rutland,
705 F.3d at 1251. The agreement suffices to demonstrate K. Stapp’s membership in the
conspiracy by a preponderance of the evidence.
Warren Fairley likewise pleaded guilty to conspiracy. Doc. 257 at 1. In his agreement,
Fairly admitted “that it was part of the conspiracy that he and Defendants Newton Jones, William
Creeden, Kateryna Jones, Lawrence McManamon, and others engaged in certain international
travel which was contrary to the terms of the Boilermakers Constitution and contrary to the
law[.]” Id. at 3. It explains that’s so because “certain expenditures were not necessary to
achieve the Boilermakers Union’s interests or for its benefit.” Id. His plea agreement’s factual
1 	The court’s earlier Order explained its willingness to rely on plea agreements in analyzing the
existence of and membership in a conspiracy. The court refers curious readers to that discussion. See
Doc. 340 at 7–8 n.2.
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basis thus indicates he was a member of the conspiracy—specifically under the government’s
theory of an embezzlement by extravagance conspiracy. Fairley’s agreement also provides that
he “knew that the scope and extent of international travel was excessive, and that over time the
length of stay, the number of participants, and the lavish expenditures grew.” Id. As with K.
Stapp, Fairley’s agreement demonstrates “he was aware of the common purpose, willingly
participated in the conspiracy, and intended to advance the purpose of the conspiracy.” Rutland,
705 F.3d at 1251. The government thus shoulders its preponderance-of-the-evidence burden to
show Fairley’s membership.
Conclude with Tyler Brown’s plea agreement. He, too, pleaded guilty to knowingly
committing a racketeering conspiracy offense. United States v. Brown, 24-20047-DDC-1 (D.
Kan. May 23, 2024), ECF 13 at 1. Brown’s agreement explains that he “functioned as the
highest authority in the President’s office in Kansas City headquarters during [N.] Jones’
frequent absences and was responsible for implementing all of [N.] Jones’ directives.” Id. at 3.
And it highlights Brown’s involvement and assistance in IBB’s payment to K. Jones of “nearly
$2,000,000 in cumulative salary, reimbursed expenses, and benefit contributions for minimal or
no productive work.” Id. at 3. Brown’s plea agreement thus makes it more likely than not that
he was a member of the conspiracy. It demonstrates that “he was aware of the common purpose,
willingly participated in the conspiracy, and intended to advance the purpose of the conspiracy.”
Rutland, 705 F.3d at 1251.
So, statements by declarants K. Stapp, Fairley, and Brown clear the declarant-
membership portion of Alcorta’s second prong. So do statements by N. Jones and Creeden, as
the court explains next.
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The court already found that the government’s independent evidence of N. Jones and
Creeden’s membership in the conspiracy sufficed. Doc. 340 at 17. Now that the government has
identified specific statements, the court must assess whether the government has demonstrated N.
Jones and Creeden’s membership by a preponderance of the evidence. The court concludes the
government has done so.
Take the statements about health insurance coverage for Brian Daly. During the James
hearing, Ms. Musil—a senior investigator with the Employee Benefits Security Administration, a
part of the Department of Labor—testified about Mr. Daly. She explained that N. Jones and
Creeden directed that Daly receive appointment as an employee and corresponding health
insurance benefits on IBB’s healthcare plan. Doc. 330 at 8 (Hr’g Tr. 8:9–24). And she testified
that “Mr. Daly was terminally ill, had not and would not be performing work for the union.” Id.
(Hr’g Tr. 8:16–18). What’s more, she testified that N. Jones and Creeden not only hired Daly
but backdated his employment and health plan participation. Id. (Hr’g Tr. 8:18–24). These
actions formed part of the charged conspiracy—i.e., embezzlement of health care funds. This
independent evidence provided one piece of the membership-in-a-conspiracy puzzle for N. Jones
and Creeden.
Now, the court combines this independent evidence with the proffered statements to
make a preponderance-of-the-evidence ruling on N. Jones and Creeden’s membership. Some of
the proffered statements bolster the independent evidence to suggest N. Jones and Creeden’s
involvement with Daly’s health insurance coverage—as example—satisfies the preponderance-
of-the-evidence standard. One statement asserts that “N. Jones instructed K. Stapp to start Brian
Daly’s health insurance on day one contrary to the insurance provisions. N. Jones and W.
Creeden instructed K. Stapp and Tyler Brown to allow Daly’s widow to keep health insurance
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for life[.]” Doc. 365-1 at 6. Ms. Musil’s testimony coupled with this oral statement by a
declarant-member—T. Brown—exemplify the government’s membership showing for N. Jones
and Creeden. Both N. Jones and Creeden—judging by a preponderance of the evidence—
understood “the common purpose” of providing Daly and his widow with health insurance
despite his performing no work as an employee. Rutland, 705 F.3d at 1251. Because both men
instructed the widow’s continued receipt of benefits, both “willingly participated in” and
“intended to advance the purpose of” the conspiracy. Coupling the James hearing evidence with
the government’s proffered statements, the court concludes it’s more likely than not that N. Jones
and Creeden were members of the conspiracy. So, the Rule 801(d)(2)(E) analysis would permit
the preliminary finding that hearsay statements by them as declarants satisfy the exception—
provided the other elements of the Rule are met.
In sum, the government’s proffered statements and its independent James hearing
evidence demonstrate that N. Jones, Creeden, K. Stapp, Fairley, and Brown alone survive the
declarant-membership requirement. The other declarants do not. The court addresses the other
half of the membership prong—defendants as members—next.
3. 	Member and Non-Member Defendants
Recall that the court must determine by a preponderance of the evidence that “the
declarant and the defendant were both members of the conspiracy[.]” Alcorta, 853 F.3d at 1137
(emphasis added). 	So, the court completes the second prong of the Rule 801(d)(2)(E) analysis
by evaluating whether the government intends to offer statements against defendants who are
conspiracy members. The court’s declarant-membership conclusions, above, resolve the
defendant-membership questions. To reiterate, the court just concluded that N. Jones and
Creeden were conspiracy members by a preponderance of the evidence. And, the earlier Order
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concluded that the government didn’t adduce sufficient independent evidence at the James
hearing to demonstrate K. Jones and McManamon’s membership in the conspiracy. Doc. 340 at
17. The upshot of this conclusion is that the government can’t offer co-conspirator statements
against K. Jones or McManamon, at least not on the government’s current showing.
According to its Supplement, the government intends to offer one of its proffered
statements against just McManamon. Doc. 365-1 at 27 (offering Exhibit 260 against
McManamon). The court denies the government’s request to find Exhibit 260 against
McManamon satisfies the exception because the government hasn’t shouldered its burden to
demonstrate McManamon’s conspiracy membership. The court’s conclusion that the
government hasn’t made a sufficient showing to establish K. Jones and McManamon’s
conspiracy membership has trial consequences for the government. Unless the government can
enhance its showing at trial and establish that K. Jones and McManamon were conspiracy
members by a preponderance of the evidence, the court will limit—by instruction—any co-
conspirator statement offered against member-defendants to exclude K. Jones and McManamon.
This result concludes the second element of Alcorta’s 801(d)(2)(E) analysis. The court
takes up the final—and most specific—one, next.
IV. 	During the Course and In Furtherance of the Conspiracy
Finally, before finding statements satisfy the co-conspirator exception to the hearsay rule,
the district court also must determine by a preponderance of the evidence whether “the
statements were made in the course of and in furtherance of the conspiracy.” Alcorta, 853 F.3d
at 1137. Our Circuit has explained that this requirement balances “the great need for
conspirators’ statements in combating undesirable criminal activity which is inherently secretive
and difficult of proof,” with “the need to protect the accused against idle chatter of criminal
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partners as well as inadvertently misreported and deliberately fabricated evidence.” United
States v. Perez, 989 F.2d 1574, 1578 (10th Cir. 1993) (quotation cleaned up).
Two characteristics emerge under this final 801(d)(2)(E) requirement: the statement’s
timing (Did the declarant make the statement during the course of the conspiracy?) and the
statement’s purpose (Did the statement further the conspiracy?). Start with timing.
A. 	During the Course of the Conspiracy
To “qualify for the coconspirator exception a statement must have been made during the
conspiracy.” Alcorta, 853 F.3d at 1139. “Statements made after the objectives of the conspiracy
have either failed or been achieved are not made during the conspiracy and must be excluded.”
Id.
Here, defendants Newton Jones and William Creeden’s Response identifies timing issues
inhering in some of the government’s proffered statements—both statements that come too early,
and some that arrive too late. Doc. 369 at 9–13. Defendants N. Jones and Creeden contend that
the government failed to anchor the start of the conspiracy in time, making statements offered
from 2004, 2006, 2012, 2013, and 2014 all “pre-conspiracy” statements. Id. at 9–10. Next,
defendants assert that statements made during the Article 17 Process or other post-investigation
concealment statements similarly fall outside the course of the conspiracy. Id. at 11.
1. 	Conspiracy Start Date
Start with the conspiracy’s origin. At the James hearing, the government’s lead
investigator-witness—Mr. Jeremy Newman—didn’t specify a definite start-date for the
conspiracy. Instead, referencing Fairley’s plea agreement, he identified a trip in June 2009 as
part of the conspiracy. Doc. 293 at 49–50 (Hr’g Tr. 49:19–50:4). This trip included Fairley, N.
Jones, and Creeden. Doc. 257 at 3. So, according to Mr. Newman’s testimony, the conspiracy
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was in effect by June 2009. Mr. Newman also identified that N. Jones assumed the presidency of
IBB in 2004. Doc. 293 at 50 (Hr’g Tr. 50:5–18). But he didn’t consider that the date when Mr.
Jones joined the conspiracy. Id. As a result, the government hasn’t demonstrated that any
statements pre-dating June 2009 were made during the course of the conspiracy. That timeline
excludes two of the government’s proffered statements by declarant Newton Jones, one labeled
Exhibit 229—dated March 3, 2004—and one labeled Exhibit 212—dated January 12, 2006.
Doc. 365-1 at 19, 22.
Next up, the end-date.
2. 	Conspiracy End Date
Defendants N. Jones and Creeden’s Response also argues that there’s another problem at
the other end of the conspiracy timeline. Namely, they contend that some of the government’s
proffered statements occurred after the criminal objectives of the alleged conspiracy had
concluded. Doc. 369 at 11. Specifically, defendants assert that “[p]ost-investigation defense
activity and Article 17 responses . . . fall outside Rule 801(d)(2)(E) unless the Government
proves they advanced an original, still-operative conspiracy object.” Id. Defendants explain that
the “Article 17 process was an internal labor-organization disciplinary proceeding initiated
against Newton Jones in 2023 by other IBB officers.” Id. at 12. So, defendants conclude,
statements “made during, in response to, or in defense of that process are not in furtherance of
the charged conspiracy.” Id.
The government, for its part, did little on this front pretrial. In their Amended Motion for
Admission of Coconspirator Statements (Doc. 288), the government asserted generally that the
conspiracy “continu[ed] to on or about August 2024.” Doc. 288 at 9. But it never attempted to
demonstrate the conspiracy was still operative at that point. See United States v. Cesareo-Ayala,
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576 F.3d 1120, 1131 (10th Cir. 2009) (“When the conspiracy’s objectives have been achieved or
have been rendered impossible, the conspiracy has ended.”). Indeed, its motion asserted that N.
Jones was removed as International President on June 2, 2023. Id. And at the James hearing, the
government’s witness testified that he “believe[d] the conspiracy ended in 2023 . . . [w]hen
Newton Jones and Willam Creeden left.” Doc. 293 at 107 (Hr’g Tr. 107:9–11). The court thus
initially denied the Rule 801(d)(2)(E) qualification for some of the government’s proffered
statements because they were offered as attempts to conceal the conspiracy after that June 2023
end-date. See Doc. 374. But then, four days into trial, the government addressed the
conspiracy’s end date when arguing about conspiracy membership. It offered—for the first
time—a proceeds argument for the August 2024 end-date in the Indictment. Doc. 1 at 15.
Specifically, it argued that defendants continued to receive proceeds from the conspiracy—even
after N. Jones’s removal—by way of pension funds.
“It is well settled that the distribution of the proceeds of a conspiracy is an act occurring
during the pendency of the conspiracy.” United States v. Morgan, 748 F.3d 1024, 1036 (10th
Cir. 2014). Our Circuit has held that the “duration of a conspiracy does not extend to attempts to
conceal the crime.” United States v. Silverstein, 737 F.2d 864, 867 (10th Cir. 1984); United
States v. Wolf, 839 F.2d 1387, 1393 (10th Cir. 1988) (“[C]oncealment after the main conspiracy
has ended falls beyond the purview of the coconspirator exception”). But when a conspiracy is
ongoing, statements to conceal may qualify as in furtherance of the conspiracy. Alcorta, 853
F.3d at 1139; United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir. 1988) (“[C]oncealment of
the crime done in furtherance of the main criminal objectives of the conspiracy falls within the
coconspirator exception.”).
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In light of the government’s new proceeds-based argument, the court qualifies a few
statements that its previous Order (Doc. 374) had denied as statements to conceal after June 3,
2023—specifically Exhibits 25, 53, 78 and 127. Under Alcorta, the concealing nature of these
statements is only problematic if the conspiracy has ended. And the Circuit has held that receipt
of proceeds may continue the conspiracy. The court thus revises its ruling. And it rejects
defendants’ arguments that these concealing statements occurred after the conspiracy ended.
For those statements which have survived thus far, the court conducts a more
individualized, statement-by-statement analysis of the final requirement—each statement must
intend to further the conspiracy.
B. 	In Furtherance of the Conspiracy
Statements “are admissible under the coconspirator exception if they are intended to
promote the conspiratorial objectives.” Perez, 989 F.2d at 1578 (quotation cleaned up). “When
inquiring whether a statement was made ‘in furtherance of’ a conspiracy, we do not focus on its
actual effect in advancing the goals of the conspiracy, but on the declarant’s intent in making the
statement.” Id. Our Circuit has identified a “wide array of statements” that qualify as in-
furtherance statements. Alcorta, 853 F.3d at 1137. They include
statements made to induce enlistment or further participation in the group’s
activities; . . . to prompt further action on the part of conspirators; . . . to reassure
members of a conspiracy’s continued existence; . . . to allay a co-conspirator’s
fears; and . . . to keep co-conspirators abreast of an ongoing conspiracy’s activities.
Perez, 989 F.2d at 1578 (quotation cleaned up). On the other hand, statements that provide
“mere narratives . . . relating to past events, even those connected with the operation of the
conspiracy” but “where the statement serves no immediate or future conspiratorial purpose”
don’t qualify as in-furtherance statements. Id. (quotation cleaned up).
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To assess the remaining statements, the court adopts the approach taken by United States
District Court Judge James O. Browning in United States v. DeLeon, 418 F. Supp. 3d 682
(D.N.M. 2019). There, Judge Browning took a statement-by-statement approach to the final
requirement—during and in furtherance of the conspiracy. Id. at 766. And he communicated
those individualized rulings in a table. Id. at 767–810. The court does so here, as well. The
court addresses the remaining statements in order of exhibit number, followed by a separate table
addressing the oral statements—they don’t have an exhibit number—organized chronologically.
James Proffer Statement (Exhibits) 	Ruling
Exhibit 21 summary statement: “K. Stapp
prepares a statement on behalf of W. Creeden
which she sends to him explaining that the
Dept. of Labor enforces strict regulations
regarding the use of credit cards by union
employees . . . and directs that . . . any charge
for which a receipt is not submitted will be
deducted from the cardholder’s following
paycheck.” Doc. 365-1 at 9–10.
Declarants: Creeden, K. Stapp
Date: 2/22/2016
Offered Against: N. Jones, Creeden
Defendants’ objections: Contradicts
furtherance theory. Doc. 369 at 24.
Denied. This statement suggests enforcement
of credit card rules, not abuse for personal
benefit. On its face, therefore, it doesn’t
promote the conspiratorial objectives. Nor is
it clear that such promotion of conspiratorial
goals was the declarants’ intent.
Exhibit 25 summary statement: “W. Creeden
discusses changes needed to the American
Express card and acknowledges the current
process possibly violates DOJ regulations.”
Doc. 365-1 at 3.
Declarant: Creeden
Date: 8/5/2023
Offered Against: Creeden
Defendants’ objections: Contradicts
furtherance theory. Doc. 369 at 25.
Granted. The government asserted that this
statement is an attempt “to conceal the
criminal objectives of the conspiracy.” Doc.
365-1 at 3. Unlike Exhibit 21, the timing of
this statement—after N. Jones’s removal—
supports the government’s theory that this
statement was intended to conceal. And
statements intended to conceal during the
course of the conspiracy qualify under
801(d)(2)(E). Alcorta, 853 F.3d at 1139.
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Exhibit 32 summary statement: “Excerpts
from 2016 Convention Proceedings—Voting
on 4.7 Resolutions.” Doc. 365-1 at 3.
Declarant: W. Fairley
Date: July 2016
Offered Against: N. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization; Too indefinite. Doc. 369
at 26.
Denied. The government asserts that co-
conspirators made this statement “to conduct
the business of the conspiracy and to
accomplish its goals.” Doc. 365-1 at 3. The
government never explains, however, what
the 4.7 Resolutions were or how that
furthered the conspiracy objectives. Nor is
declarant Fairley’s intent to promote the
conspiracy clear. The government thus fails
to shoulder its burden to demonstrate these
convention proceedings qualify as statements
in furtherance of the conspiracy.
Exhibit 44 summary statement: “Newton
Jones’ Appointment of McManamon and
Creeden to Alternative Committee.” Doc.
365-1 at 1.
Declarant: N. Jones
Date: May 3, 2023
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Defensive activity;
Membership requirement. Doc. 369 at 27.
Denied. The government never explains how
the Alternative Committee relates to the
charged conspiracy. Indeed, this “Alternative
Committee” was never mentioned in the
Indictment or by either of the James hearing
witnesses. See generally Doc. 1; Doc. 293;
Doc. 330. Without more, the court can’t
ascertain whether this statement was in
furtherance of the conspiracy.
Exhibit 46 summary statement: “Bill
Creeden and Lawrence McManamon
Announcement of Alternative Committee.”
Doc. 365-1 at 1.
Declarant: Creeden; McManamon
Date: May 16, 2023
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Defensive activity;
Membership requirement. Doc. 369 at 28.
Denied. The government never explains how
the Alternative Committee relates to the
charged conspiracy. Indeed, this “Alternative
Committee” was never mentioned in the
Indictment or by either of the James hearing
witnesses. See generally Doc. 1; Doc. 293;
Doc. 330. Without more, the court can’t
ascertain whether this statement was in
furtherance of the conspiracy.
Exhibit 51 summary statement: “Decision of
Bill Creeden and Lawrence McManamon.”
Doc. 365-1 at 2.
Declarants: Creeden, McManamon
Date: June 14, 2023
Offered Against: N. Jones, Creeden,
McManmon
Denied. The government never explains what
this decision is or how it relates to the charged
conspiracy. Without more explanation, the
court can’t ascertain whether this statement
was in furtherance of the conspiracy.
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Defendants’ objections: Defensive activity;
Membership requirement. Doc. 369 at 29.
Exhibit 53 summary statement: Describes an
email from N. Jones to Creeden and Wiser
about edits to a proposed statement drafted by
N. Jones to “rebut accusations against N.
Jones of misappropriation and to tout
inaccurate representations about the union’s
compliance with the DOL audit.” Doc. 365-1
at 8.
Declarants: N. Jones, Creeden
Date: June 5, 2023
Offered Against: N. Jones, Creeden
Defendants’ objection: Defensive activity.
Doc. 369 at 30.
Defendant Creeden’s objection: Seeks legal
advice.
Granted. The government offers this
statement, in part, as one intended to conceal
the activities of the conspiracy from others.
The timing of the statement—just days after
N. Jones’s removal—supports the
government’s theory. In addition, the
description of the statement’s content—as
rebutting the accusations—supports the
government’s theory.
Exhibit 54 summary statement: “A. Wiser
sends a statement to IBB members on behalf
of N. Jones which indicates that IBB is
donating money to a Ukrainian charity. A
member responds to Wiser complaining . . .
W. Fairley . . . responds [to Wiser] ‘no need
for Newt to see this and no need to respond.’”
Doc. 365-1 at 8–9.
Declarant: W. Fairley
Date: 3/3/2022–3/11/2022
Offered Against: N. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization. Doc. 369 at 31.
Denied. The government asserts that this
statement was made “in an effort to conceal
the activities of the conspiracy from others.”
Doc. 365-1 at 8. But the government hasn’t
charged defendants with improper charity
donations. See generally Doc. 1. Indeed, the
word “charity” doesn’t even appear in the
Indictment. See id. How this communication
promoted conspiratorial objectives thus
remains unclear.
Exhibit 55 summary statement: File of
Newton Jones’ International Assignments of
Boilermaker Union Employees. Doc. 365-1
at 6.
Declarants: W. Fairley & N. Jones
Date: 2013–2023
Offered Against: N. Jones
Defendants’ objections: Too indefinite. Doc.
369 at 32.
Denied. This isn’t a statement—it’s a file
spanning 11 years. The summary statement is
thus too general for the court to engage in the
requisite analysis determining how a
statement promotes the conspiratorial
objectives.
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Exhibit 74 summary statement: N. Jones
pleading with C. Jones to “be productive” and
writing “continue as you are and you won’t be
able to stay employed with the Boilermakers.”
Doc. 365-1 at 5.
Declarant: N. Jones
Date: 12/25/15
Offered Against: N. Jones, Creeden
Defendants’ objections: Narrative; Statement
contradicts alleged agreement. Doc. 369 at
34.
Denied. The government asserts that this
statement was in furtherance of the
conspiracy because it shows that “N. Jones
knew that C. Jones failed to show up to work
for extended periods of time yet continued to
employ C. Jones.” Doc. 365-1 at 5. The
statement doesn’t intend to promote a
conspiratorial objective, however. To the
contrary, it appears to contradict the alleged
conspiracy by suggesting that C. Jones can’t
continue to receive a salary if he doesn’t do
the work.
Exhibit 78 summary statement: Describes a
series of emails written by N. Jones to an
individual at the Kansas City Business
Journal explaining K. Jones’s duties. Doc.
365-1 at 17.
Declarant: N. Jones
Date: 6/7/23
Offered Against: N. Jones, K. Jones, Creeden
Defendants’ objections: Defensive activity;
Membership requirement. Doc. 369 at 35.
Granted. The government asserts this
statement furthered the conspiracy because it
was intended to conceal the conspiracy’s
activities. The timing of the statement—just
days after N. Jones’s removal—supports the
government’s furtherance theory. And the
government’s description of the contents
likewise suggests a concealment objective.
Exhibit 82 summary statement: “‘President
Jones would like both of their salaries
increased to $75,000 per year’ (Re: Shae
Jones and Derek Zurowski).” Doc. 365-1 at
5.
Declarant: T. Brown
Date: 6/25/21
Offered Against: N. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization. Doc. 369 at 36.
Granted. The government asserts that this
statement “was made regarding the ongoing
activities of the conspiracy.” Doc. 365-1 at 5.
The government’s lead investigator, Mr.
Newman, testified that Shae Jones is N.
Jones’s daughter and Derek Zurowski is
Shae’s husband. Doc. 293 at 29 (Hr’g Tr.
29:10–13). This statement thus promotes the
“family members and friends” conspiratorial
objective charged by the Indictment.
Specifically, the Indictment alleges that as
part of the conspiracy “members of the Jones
Enterprise” placed “their family members and
friends in lucrative positions of employment
within the Boilermakers Union with full
benefits and reimbursed expenses” without
fulltime work. Doc. 1 at 21.
Exhibit 83 summary statement: Direction “to
draft an appointment letter naming D.
Zurowski as Director of I.T. with an annual
Granted. The government asserts that this
statement “facilitate[s] the carrying out of the
conspiracy and transact[s] the business of the
conspiracy.” Doc. 365-1 at 5–6. The
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22
salary of $140,000 per Newton Jones.” Doc.
365-1 at 5–6.
Declarant: T. Brown
Date: 9/13/21
Offered Against: N. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization. Doc. 369 at 37.
government’s lead investigator, Mr. Newman,
testified that Shae Jones is N. Jones’s
daughter and Derek Zurowski is Shae’s
husband. Doc. 293 at 29 (Hr’g Tr. 29:10–13).
This statement thus promotes the charged
conspiratorial objective of placing “family
members and friends in lucrative positions of
employment within the Boilermakers Union
with full benefits and reimbursed expenses”
without fulltime work. Doc. 1 at 21.
Exhibit 92-b summary statement: “‘Brian
Daly passed away June 1, 2018. Coverage for
his spouse and dependent children will
continue. I will send you a copy of the letter
stating this once it’s approved by President
Jones and IST Creeden.’” Doc. 362-1 at 10.
Declarant: K. Stapp
Date: 6/14/18
Offered Against: N. Jones, Creeden
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 38.
Granted. At the James hearing, a
government witness—Paula Musil—
discussed the authorization of Mr. Daly’s
health plan and backdated employment as part
of the charged conspiracy. Doc. 330 at 8
(Hr’g Tr. 8:9–24). This statement qualifies as
one intended to promote the conspiratorial
objectives. The declarant intended to advance
the goals of the conspiracy, securing the
allegedly improper coverage for Daly’s
spouse and dependent.
Exhibit 95 summary statement: “Email from
K. Stapp to N. Jones advising him of Brian
Daly’s enrollment in IBB’s health insurance
program.” Doc. 365-1 at 10.
Declarant: K. Stapp
Date: 4/20/18
Offered Against: N. Jones, Creeden
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 39.
Granted. At the James hearing, a
government witness—Paula Musil—
discussed the authorization of Mr. Daly’s
health plan and backdated employment as part
of the charged conspiracy. Doc. 330 at 8
(Hr’g Tr. 8:9–24). This statement thus
qualifies as one that keeps co-conspirators
abreast of the alleged ongoing conspiracy’s
activites.
Exhibit 96 summary statement: “Email from
K. Stapp to Angela Reyes attaching letter and
enrollment form for Brian Daly to participate
in IBB health insurance program and advising
that his hiring was ‘retroactive to January 1st
and eligible for health coverage.’” Doc. 365-
1 at 10.
Declarants: K. Stapp, Creeden
Date: 5/15/18
Offered Against: N. Jones, Creeden
Granted. At the James hearing, a
government witness—Paula Musil—
discussed the authorization of Mr. Daly’s
health plan and backdated employment as part
of the charged conspiracy. Doc. 330 at 8
(Hr’g Tr. 8:9–24). This statement qualifies as
one intended to advance the goals of the
conspiracy by securing allegedly improper
health insurance coverages for an ineligible
individual, Daly.
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Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 40.
Exhibit 113 summary statement: “Phee
Jungsun Expenses as Guest of Boilermakers
Union.” Doc. 365-1 at 19.
Declarant: Fairley
Date: 10/1/13
Offered Against: Creeden
Defendants’ objections: Date; Routine
business of a lawful organization. Doc. 369
at 41.
Denied. The Indictment alleges that
defendants engaged in unauthorized,
expensive travel unnecessary to achieve
IBB’s interests. Doc. 1 at 20. But the
Indictment doesn’t advance a theory of
paying for lavish expenses for guests as part
of the conspiracy. The government asserts, in
boilerplate fashion, that this statement was
made “by coconspirators to conduct the
business of the conspiracy and to accomplish
its goals.” Doc. 365-1 at 19. It never
explains in any further detail how this
statement promotes conspiratorial objectives.
The government thus hasn’t shouldered its
burden to demonstrate this statement qualifies
under Rule 801(d)(2)(E).
Exhibit 117a summary statement: “Email
from W. Creeden to K. Stapp stating that IBB
will host Italian visitors at the CSO
conference and pay airfare and hotel costs.”
Doc. 365-1 at 11.
Declarant: Creeden
Date: 12/7/17
Offered Against: N. Jones, Creeden
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 42.
Denied. The Indictment alleges that
defendants engaged in unauthorized,
expensive travel unnecessary to achieve
IBB’s interests. Doc. 1 at 20. But the
Indictment doesn’t advance a theory of
paying for lavish expenses for visitors as part
of the conspiracy. The government asserts, in
boilerplate fashion, that this statement was
made “to facilitate the carrying out the
conspiracy and to transact the business of the
conspiracy.” Doc. 365-1 at 11. It never
explains in any further detail how this
statement promotes conspiratorial objectives.
The government thus hasn’t shouldered its
burden to demonstrate this statement qualifies
under Rule 801(d)(2)(E).
Exhibit 117b summary statement: “Email
chain from W. Creeden to K. Stapp informing
her that N. Jones has approved giving Italian
visitors Shinola watches at the FLEI
conference.” Doc. 365-1 at 11.
Declarants: K. Stapp, Creeden
Date 3/21/22
Offered Against: N. Jones, Creeden
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 43.
Denied. The Indictment alleges that
defendants engaged in unauthorized,
expensive travel unnecessary to achieve
IBB’s interests. Doc. 1 at 20. But the
Indictment doesn’t advance a theory of
paying for lavish expenses for visitors as part
of the conspiracy. The government asserts, in
boilerplate fashion, that this statement was
made “to facilitate the carrying out the
conspiracy and to transact the business of the
conspiracy.” Doc. 365-1 at 11. It never
explains in any further detail how this
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statement promotes conspiratorial objectives.
The government thus hasn’t shouldered its
burden to demonstrate this statement qualifies
under Rule 801(d)(2)(E).
Exhibit 117c summary statement: “Email
chain between W. Creeden and Jim O’Leary
discussing hosting Italian visitors at
FLAI/Tripartite conference.” Doc. 365-1 at
20.
Declarant: Creeden
Date: 9/13/12–9/19/12
Offered Against: N. Jones, Creeden
Defendants’ objections: Date; Routine
business of lawful organization. Doc. 369 at
44.
Denied. The Indictment alleges that
defendants engaged in unauthorized,
expensive travel unnecessary to achieve
IBB’s interests. Doc. 1 at 20. But the
Indictment doesn’t advance a theory of
paying for lavish expenses for visitors as part
of the conspiracy. The government asserts, in
boilerplate fashion, that this statement was
made “to facilitate the carrying out the
conspiracy and to transact the business of the
conspiracy.” Doc. 365-1 at 20. It never
explains in any further detail how this
statement promotes conspiratorial objectives.
Exhibit 118 summary statement: “Email
from A. Wiser to W. Creeden telling him that
N. Jones directed her to ‘write up’ the FLAI
Conference and add photos[.]” Doc. 365-1 at
9.
Declarant: N. Jones
Date: 5/23/22
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Defensive activity;
Contradicts furtherance theory. Doc. 369 at
45.
Denied. This statement doesn’t induce
enlistment, prompt further action, reassure,
allay fears, or keep conspirators abreast of
ongoing activities. See Perez, 989 F.2d at
1578. Instead, this appears to constitute a
routine directive issued from a boss to a
subordinate to complete a project.
Exhibit 127 summary statement: N. Jones
replied to an email from an individual at the
Kansas City Business Journal about “his trips
to Ukraine and his wife K. Jones working for
the Union.” N. Jones’s defended his travel to
Ukraine and replied that IBB wasn’t spending
funds on K. Jones. Doc. 365-1 at 23–24.
Declarant: N. Jones
Date: 6/7/23
Offered Against: N. Jones, Creeden
Defendants’ objection: Defensive activity.
Doc. 369 at 47.
Granted. The government asserts this
statement furthered the conspiracy because it
was intended to conceal the conspiracy’s
activities. Doc. 365-1 at 17. The timing of
the statement—just days after N. Jones’s
removal—supports the government’s
furtherance theory. And the government’s
description of the contents likewise suggests a
concealment objective.
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Exhibit 142 summary statement:
“In an email . . . K. Stapp tells W. Fairley the
following: ‘you have 143 days of vacation
recorded and to reach the maximum allowable
contribution for Boilermakers National
Pension for the fiscal year ending 9/30/18,
you will need to request a vacation payout of
23 days.” Doc. 365-1 at 11–12.
Describing second email where Fairley
requests 12 weeks’ vacation payout. Id.
Declarant: K. Stapp
Date: 8/19/18 (first email); 9/9/22 (second
email)
Offered Against: N. Jones, Creeden
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 48.
Granted. The Indictment alleges as part of
the conspiracy that defendants enriched
themselves by failing to enforce the IBB
policy about cashing out vacation time. Doc.
1 at 23. These statements intended to advance
that conspiracy goal and to keep co-
conspirator’s abreast of the alleged ongoing
conspiracy’s activities.
Exhibit 144 summary statement: Describes
emails between Creeden and a representative
at an Iceland fishing outfitter company
inquiring about lodging and rates for a guided
group fishing trip. Doc. 365-1 at 20.
Declarant: Creeden
Date: 3/18/18–3/20/18
Offered Against: N. Jones, Creeden
Defendants’ objections: Narrative; Too
indefinite. Doc. 369 at 50.
Denied. The government hasn’t shouldered
its burden to demonstrate this statement was
intended to promote the conspiratorial
objectives. The government hasn’t explained
how this Icelandic fishing trip interacts with
Creeden’s role at IBB, never clarifying
whether this trip was expensed to IBB. It’s
thus distinguishable from email chains with
other IBB members about travel. To be sure,
the Indictment charges a conspiracy that
includes lavish travel. But the court declines
to assume this Icelandic travel communication
implicates travel at IBB’s expense—apart
from the government so explaining. And the
government offers nothing more than a
boilerplate explanation of its in-furtherance
theory, stating simply that these statements
“facilitate the carrying out of the conspiracy
and transact the business of the conspiracy.”
Doc. 365-1 at 20.
Exhibit 144* summary statement: Describes
an email chain between Bob McCall with the
Bank of Labor and N. Jones concerning a
$1.5 million line of credit owned by IBB in
the form of a CD. McCall tells N. Jones and
Creeden that McManamon has already signed
the loan documents. N. Jones responded to
Granted. The Indictment charges, as part of
the conspiracy, that N. Jones and Creeden
extended to Bank of Labor $7 million in loans
of Boilermakers Union funds without
consulting the Board of Trustees and
Executive Council. Doc. 1 at 24. This email
exchange appears intended to promote that
conspiratorial objective.
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McCall, informing McCall that Creeden is on
a fishing trip in Iceland. Doc. 365-1 at 12.
Declarant: N. Jones
Date: 6/27/23
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Routine business of
a lawful organization; Too indefinite;
Membership requirement. Doc. 369 at 49.
* The government’s proffered statement chart
included two Exhibits labeled with the same
Exhibit number—144. The court addresses
them in chronological order.
Exhibit 146 summary statement: “Jim
O’Leary emails W. Creeden information and
pictures about a boar hunt. O’Leary tells W.
Creeden that there will be ‘plenty of boar
meat and a river of vino’ to which W.
Creeden responds via email, ‘looks great!’”
Doc. 365-1 at 12.
Declarant: Creeden
Date: 1/13/18
Offered Against: N. Jones, Creeden
Defendants’ objection: Narrative. Doc. 369
at 51.
Denied. The government hasn’t shouldered
its burden to demonstrate this email chain was
intended to promote the conspiratorial
objectives. The government hasn’t explained
to the court Jim O’Leary’s role and how this
boar hunt dovetails—if it does—with travel
engaged in at IBB’s expense. Neither the
Indictment nor any of the James hearing
briefing or testimony clarifies Mr. O’Leary’s
role. See generally Doc. 1; Doc. 288; Doc.
293; Doc. 330 (all never mention O’Leary).
To be sure, the Indictment charges a
conspiracy that includes lavish travel. But the
government never explains the overlap of that
charge with this boar hunt.
Exhibit 146a summary statement: Describes
an email exchange between Creeden and
Mark Conway from Alaska Flyfishing
Adventures about pricing for a guided fishing
trip. Creeden responds via email and asks
about adding an additional 3 people. Doc.
365-1 at 12–13.
Declarant: Creeden
Date: 8/1/12
Offered Against: N. Jones, Creeden
Defendants’ objection: Narrative. Doc. 369
at 52.
Denied. The government hasn’t shouldered
its burden to demonstrate this statement was
intended to promote the conspiratorial
objectives. The government hasn’t explained
how this Alaskan fishing trip interacts with
Creeden’s role at IBB, never clarifying
whether this trip was expensed to IBB. It’s
thus distinguishable from email chains about
travel involving other IBB members. To be
sure, the Indictment charges a conspiracy that
includes lavish travel. But the court declines
to assume this Alaskan travel implicates
travel at IBB’s expense apart from the
government so explaining. And the
government offers nothing more than a
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boilerplate explanation of its in-furtherance
theory, stating simply that these statements
“facilitate the carrying out of the conspiracy
and transact the business of the conspiracy.”
Doc. 365-1 at 13.
Exhibit 151 summary statement: Creeden
memorializes his vacation bucket list in email
to himself. Doc. 365-1 at 20–21.
Declarant: Creeden
Date: 9/25/22
Offered Against: Creeden
Defendants’ objection: Narrative. Doc. 369
at 53.
Denied. This self-addressed list did nothing
to serve an immediate or future conspiratorial
purpose. Indeed, it never even reached
another conspirator. And the “wide array of
statements” our Circuit has identified as in-
furtherance statements all assume the
statement reached a co-conspirator. See
Perez, 989 F.2d at 1578. The government
hasn’t shouldered its burden to demonstrate
this self-addressed list was in furtherance of
the conspiracy.
Exhibit 152 summary statement: “Pursuant
to IEC Policy, I am, hereby, requesting
payment in lieu of approximately 74 weeks
accrued vacation.” Doc. 365-1 at 13.
Declarant: Creeden
Date: 7/14/23
Offered Against: N. Jones, Creeden
Defendants’ objection: Contradicts
government’s furtherance theory. Doc. 369 at
54.
Granted. The Indictment alleges as part of
the conspiracy that defendants enriched
themselves by failing to enforce the IBB
policy about cashing out vacation time. Doc.
1 at 23. This statement intended to advance
that conspiracy goal. Defendants argue that,
because the statement invokes the IEC policy,
it contradicts the government’s in-furtherance
theory. Doc. 369 at 54. But the Indictment
clarifies that the IBB policy it charges
defendants with failing to enforce “limit[ed]
cash payment in lieu of vacation to two weeks
per year.” Doc. 1 at 23. Here, the statement
asks for 72 weeks over that limit. So, the
court concludes, this statement intended to
advance the goal of the conspiracy.
Exhibit 153 summary statement: “Memo
from Jones re Vacation Policy 2012.” Doc.
365-1 at 3–4.
Declarant: N. Jones
Date: 12/3/2012
Offered Against: N. Jones, Creeden,
McManamon, K. Jones
Defendants’ objections: Pre-conspiracy;
Routine business of lawful organization;
Membership requirement. Doc. 369 at 55.
Granted. The government asserts that this
statement was made “to conduct the business
of the conspiracy and to accomplish its
goals.” Doc. 365-1 at 3–4. The Indictment
alleges as part of the conspiracy that
defendants enriched themselves by failing to
enforce the IBB policy about cashing out
vacation time. Doc. 1 at 23. N. Jones thus
plausibly made this statement to promote the
conspiratorial objectives.
The government can’t offer this statement
against McManamon and K. Jones without a
further showing of their membership in the
conspiracy, however.
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Exhibit 155 summary statement: “W.
Creeden emails K. Stapp inquiring about the
supposed two-week cap in vacation payouts.
K. Stapp responds that she believed that N.
Jones did not implement the new policy until
after the National Convention.” Doc. 365-1 at
13.
Declarants: Creeden, K. Stapp
Date: 10/20/15
Offered Against: N. Jones, Creeden
Defendant N. Jones concedes that this
statement satisfies Rule 801(d)(2)(E) for N.
Jones only. Doc. 370 at 1.
Defendant Creeden’s objections: Routine
business of lawful organization; Contradicts
government’s furtherance theory. Doc. 369 at
56.
Granted. The Indictment alleges as part of
the conspiracy that defendants enriched
themselves by failing to enforce the IBB
policy about cashing out vacation time. Doc.
1 at 23. This statement advances that
conspiracy goal.
Exhibit 156 summary statements: “Email
exchange from K. Stapp to W. Creeden where
the two discuss the 2015
Amendment . . . concerning the vacation
payout policy. K. Stapp tells W. Creeden that
the new policy was not enforced and was not
distributed to staff per N. Jones.” Doc. 365-1
at 13.
Declarants: Creeden, K. Stapp
Date: 4/2/20
Offered Against: N. Jones, Creeden
Defendants’ objection: Contradicts
government’s furtherance theory. Doc. 369 at
57.
Granted. The Indictment alleges as part of
the conspiracy that defendants enriched
themselves by failing to enforce the IBB
policy about cashing out vacation time. Doc.
1 at 23. This statement advances that
conspiracy goal. It keeps co-conspirators
abreast of an ongoing conspiracy’s activities.
Exhibit 159 summary statement: Describes
an email chain between Jim O’Leary, N.
Jones, and Creeden about an upcoming trip to
Italy, including excursions. Doc. 365-1 at 21.
N. Jones responded “‘looks excellent.’” Id.
Creeden responded “‘Jim finally figured out
how we like to travel.’” Id.
Declarants: N. Jones, Creeden
Date: 4/12/18
Offered Against: N. Jones, Creeden
Granted. Engaging in plans with other IBB
members to travel internationally implicates
the charged conspiracy because it involves
allegedly unnecessary and lavish trips. See
Doc. 1 at 20. An email chain that
communicates travel plans with fellow
conspiracy members thus promotes the
conspiratorial objectives. And statements of
affirmation about the travel plans may prompt
further plans of a similar nature—thus
advancing the conspiratorial goals.
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Defendants’ objection: Narrative. Doc. 369
at 58.
Exhibit 162 summary statement: Describes
an email chain between H. Rose, N. Jones,
and Creeden about a private jet proposal
costing about $577,000. N. Jones wants to
discuss further. Creeden voices his approval.
Creeden emails the next day confirming
IBB’s interest. Doc. 365-1 at 18.
Declarants: N. Jones, Creeden
Date: 9/20/22–9/21/22
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Routine business of
a lawful organization; Membership
requirement. Doc. 369 at 59.
Granted. These statements were intended to
promote the conspiratorial objectives. The
Indictment alleges that part of the charged
conspiracy included members abusing their
responsibilities as officers and employees of
IBB “by failing to hold the money and
property” of IBB “solely for the benefit of”
IBB and its members. Doc. 1 at 17. The
purchase of the private jet package implicates
this conspiratorial objective and these
statements further that goal.
The government can’t offer this statement
against McManamon without a further
showing of his membership in the conspiracy,
however.
Exhibit 164 summary statement: Describes
email exchange between Mike Johnson with
Legacy Accounting and N. Jones about Shae
Jones traveling on IBB’s private jet—with a
cost to IBB of around $6,800. N. Jones
responds that Shae was a “temp employee of
the union[.]” Doc. 365-1 at 14.
Declarant: N. Jones
Date: 9/21/17
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objection: Routine business of
lawful organization; Membership
requirement. Doc. 369 at 60.
Granted. The government’s lead
investigator, Mr. Newman, testified that Shae
Jones is N. Jones’s daughter. Doc. 293 at 29
(Hr’g Tr. 29:10–11). This statement thus
promotes the conspiratorial objective of
placing “family members and friends in
lucrative positions of employment within the
Boilermakers Union with full benefits and
reimbursed expenses” without fulltime work.
Doc. 1 at 21.
The government can’t offer this statement
against McManamon without a further
showing of his membership in the conspiracy,
however.
Exhibit 166 summary statement: “H. Rose
emails N. Jones for approval to book a mid-
size private jet from Destin, FL to Denver,
CO on Thursday August 25, 2022, at a cost of
$32,995. N. Jones approves this request via
email. Doc. 365-1 at 18.
Declarant: N. Jones
Date: 8/24/22
Offered Against: N. Jones, Creeden
Granted. These statements were intended to
promote the conspiratorial objectives. The
Indictment alleges that part of the charged
conspiracy included members abusing their
responsibilities as officers and employees of
IBB “by failing to hold the money and
property” of IBB “solely for the benefit of”
IBB and its members. Doc. 1 at 17. The use
of union funds to travel from Florida to
Colorado at a cost of nearly $33,000
implicates that conspiratorial objective.
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30
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 61.
Exhibit 175 summary statement: Describes
an email chain between N. Jones and Mike
Linderer about K. Jones’s work timeline and
responsibilities. Doc. 365-1 at 24.
Declarant: N. Jones
Date: 1/18/18
Offered Against: N. Jones, K. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization; Membership
Requirement. Doc. 369 at 63.
Granted. The charged conspiracy includes
payment and other employment benefits to K.
Jones for little-to-no work performed. Doc. 1
at 20–21. This email chain thus advances that
conspiratorial goal.
The government can’t offer this statement
against K. Jones without a further showing of
her membership in the conspiracy, however.
Exhibit 180 summary statement: “Bank of
Labor Board of Directors Minutes 2012–
2022.” Doc. 365-1 at 22.
Declarants: Fairley, N. Jones, Creeden
Date: 2021–2022*
Offered Against: Fairley,** N. Jones,
Creeden
Defendants’ objection: Too indefinite. Doc.
369 at 65.
*The government’s Supplement identifies two
different date ranges for Exhibit 180: 2012–
2022 and 2021–2022. The court’s not sure
which one the government intended, but it
doesn’t affect the court’s ruling either way.
**The government’s Supplement states it will
offer this statement against Fairley, but
Fairley has pleaded and thus is not involved
in the trial.
Denied. Board of Directors minutes from a
multi-year span aren’t statements. The court
can’t assess whether multiple years of
meeting minutes are in furtherance of a
conspiracy because the government’s proffer
never identifies a statement.
Exhibit 194-e summary statement: Email
from N. Jones to Bob McCall at Bank of
Labor asking whether N. Jones can withdraw
retirement account funds while still
employed. Doc. 365-1 at 22.
Declarant: N. Jones
Date: 7/22/20
Offered Against: N. Jones
Granted. Embezzling pension funds from
Bank of Labor is part of the charged
conspiracy. Doc. 1 at 16. An email seeking
that very aim promotes the conspiratorial
objectives.
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31
Defendant N. Jones concedes this statement
qualifies under Rule 801(d)(2)(E). Doc. 370
at 1.
Defendant Creeden’s objection: Routine
business of lawful organization. Doc. 369 at
66.
Exhibit 194-g summary statement: Creeden
requests a “‘spreadsheet containing the total
cost of salary, payroll taxes, bonuses,
phantom stock, vehicles, and life insurance.’”
Doc. 365-1 at 22.
Denied. The government neglects to offer
any argument for how this statement is in
furtherance of the conspiracy—not even a
boilerplate rationale. “The government, as
the offering party, bears the burden of proving
the[] predicate findings.” Majeed, 2024 WL
3580664, at *1. Here, the government failed
to even try.
Exhibit 213 summary statement: N. Jones’s
Application and correspondence from Nation
Boilermaker Blacksmith Pension Trust. Doc.
365-1 at 22.
Declarant: N. Jones
Date: September 2023
Offered Against: N. Jones, K. Jones
Defendants’ objection: Defensive activity;
Routine business of lawful organization;
Membership requirement. Doc. 369 at 69.
Grant in part; deny in part. N. Jones’s
Application for pension funds promotes the
conspiratorial objective of embezzling
pension funds. The Application portion of
this request is granted. But the broad
category of “correspondence” doesn’t provide
the court sufficient information to assess
whether statements within that
correspondence were made in furtherance of
the conspiracy. The “correspondence”
portion of this request is denied.
Exhibit 217 summary statement: “Cory
Channon with IBB emails N. Jones requesting
permission to attend a climate change
conference in Germany. N. Jones forwards
this request to Cullen Jones and gives him
permission to attend.” Doc. 365-1 at 18–19.
Declarant: N. Jones
Date: 4/10/22
Offered Against: N. Jones, Creeden
Defendants’ objection: Routine business of
lawful organization. Doc. 369 at 70.
Granted. This statement promotes the
“family members and friends” conspiratorial
objective charged by the Indictment.
Specifically, the Indictment alleges that as
part of the conspiracy “members of the Jones
Enterprise” placed “their family members and
friends in lucrative positions of employment
within the Boilermakers Union with full
benefits and reimbursed expenses” without
fulltime work. Doc. 1 at 21.
Exhibit 218 summary statement: Describing
an email exchange between N. Jones and
Creeden about how N. Jones’s expenses are
recorded in the LM Report. Creeden explains
that N. Jones’s expenses are so high because
the private jet package is included. N. Jones
responds with the cost per member for him to
Granted. N. Jones’s justification for his jet
package travel—i.e., the cost per member per
day—may serve as a statement made to
induce further participation in the group’s
activities. It thus qualifies as a statement
intended to promote the conspiratorial
objectives.
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32
take a private jet, identifying it as “‘less than
1 penny per day[.]’” Doc. 365-1 at 14.
Declarants: N. Jones, Creeden
Date: 6/25/12
Offered Against: N. Jones, Creeden
Defendants’ objection: Date, Contradicts
government’s furtherance theory. Doc. 369 at
71.
Exhibit 219 summary statement: Fairley
forwarded a news article about the sentencing
of a former business manager for
embezzlement. N. Jones responds that the
former business manager deserves jail time,
shame, and likely needs a mental health
evaluation. Doc. 365-1 at 21.
Declarants: N. Jones, Fairley
Date: 2/12/18–2/13/18
Offered Against: N. Jones, Creeden
Defendants’ objection: Narrative. Doc. 369
at 72.
Denied. The government contends this
statement was “meant to reassure members of
the conspiracy of the continued existence of
the conspiracy.” Doc. 365-1 at 21. But how?
The government offers no further explanation.
See id. As defendants aptly point out,
“[f]orwarding an article about an unrelated
person’s embezzlement and condemning that
embezzler is the opposite of advancing an
embezzlement conspiracy.” Doc. 369 at 72.
Exhibit 222 summary statement: Emergency
Trusteeship on Local 104. Doc. 365-1 at 27–
28.
Declarant: N. Jones
Date: 9/12/2016
Offered Against: N. Jones
Defendants’ objections: Routine business of
lawful organization. Doc. 369 at 74.
Denied. The government never explains how
this emergency trusteeship promotes
conspiratorial objectives. Instead, the
government simply contends that this
statement was “made by coconspirators to
conduct the business of the conspiracy and to
accomplish its goals.” Doc. 365-1 at 27–28.
That’s not enough for the government to carry
its burden.
Exhibit 231 summary statement: Describes
N. Jones’s response to an email from a D.C.-
based attorney asking questions about K.
Jones’s employment at IBB, N. Jones’s dual
role at IBB and Bank of Labor, and N. Jones’s
2013 tax return. Doc. 365-1 at 25–26.
Declarant: N. Jones
Dates: 8/8/14; 6/17/14; 6/18/14
Offered Against: N. Jones, Creeden, K. Jones
Granted. The government asserts N. Jones’s
response serves to conceal the activities of the
conspiracy. Doc. 365-1 at 25–26. With an
ongoing conspiracy—and in 2014 the charged
conspiracy was ongoing—statements to
conceal the conspiracy qualify as in
furtherance of the conspiracy. Alcorta, 853
F.3d at 1139; Wolf, 839 F.2d at 1393.
The government can’t offer this statement
against K. Jones without a further showing of
her membership in the conspiracy, however.
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Defendants’ objection: Date; Seeks or
conveys legal advice; Membership
requirement. Doc. 369 at 76–77.
Exhibit 232* summary statements:
“Newton Jones texting that he and K. Jones
are not feeling well and inquiring if someone
else can address conference attendees on
behalf of IBB.” Doc. 365-1 at 4.
“Newton sends text that he will not participate
in Bank of Labor phone call . . . [and] that he
is resting and will miss the scheduled lunch.”
Id.
Declarant: N. Jones
Dates: 2/6/20; 9/26/18
Offered Against: N. Jones, K. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization; Narrative; Membership
requirement. Doc. 369 at 78–79.
*The government’s Supplement identifies two
text message chains as Exhibit 232. See Doc.
365-1 at 4. The court addresses them
together.
Granted. The government asserts that these
statements demonstrate how N. Jones traveled
internationally on behalf of IBB and then
failed to attend meetings or conduct other
business. Doc. 365-1 at 4. The Indictment
alleges frequent inability to work as part of
the conspiracy whereby N. Jones and Creeden
embezzled pension funds. Doc. 1 at 26. N.
Jones thus plausibly made this statement to
promote the conspiratorial objective of
receiving full-time benefits and traveling on
IBB’s dime while not working full-time.
The government can’t offer this statement
against K. Jones without a further showing of
her membership in the conspiracy, however.
Exhibit 233 summary statement: Email
inquiring about purchase of European model
Dyson hairdryer where N. Jones states both
he and K. Jones “live in ‘both America and
Ukraine and travel mostly in Eastern and
Western Europe.’” Doc. 365-1 at 26.
Declarants: N. Jones
Dates: 7/8/17
Offered Against: N. Jones, K. Jones,
Creeden, McManamon
Defendants’ objections: Routine business of
lawful organization; Narrative; Membership
requirement. Doc. 369 at 80–81.
Denied. A statement suggesting that N. Jones
owned more than one home and traveled
doesn’t overlap sufficiently with any union-
related travel or other charged conspiracy
activity to qualify as promoting conspiratorial
objectives.
Exhibit 236 summary statement: N. Jones
emails copy of K. Jones’s passport and visa to
meet N. Jones in Paris in May 2011 to law
firm. Doc. 365-1 at 26.
Declarants: N. Jones, K. Jones
Denied. The government fails to identify any
nexus between these steps taken for
international travel and IBB. While engaging
in a conspiracy involving excessive
international travel would require travel
documents, the sole act of acquiring travel
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34
Date: 9/27/2012
Offered Against: N. Jones, K. Jones
Defendants’ objection: Membership
requirement. Doc. 369 at 82.
Defendant Creeden’s objection: Seeks or
conveys legal advice. Id.
documents—with no IBB nexus—doesn’t
suffice. And the government’s only in-
furtherance argument is boilerplate: “The
coconspirator statement was made to facilitate
and transact the business of the conspiracy.”
Doc. 365-1 at 26.
Exhibit 238 summary statement: Email from
N. Jones to D. Jones sending K. Jones’s email
address. Doc. 365-1 at 26–27.
Declarant: N. Jones
Date: 8/9/2012
Offered Against: N. Jones
Defendants’ objection: Date; Narrative;
Membership requirement. Doc. 369 at 83.
Denied. The government asserts that this is
“a statement made by a coconspirator that
identifies a conspirator.” Doc. 365-1 at 26–
27. But the description says only that N.
Jones sent K. Jones’s email address. Without
more explanation, it isn’t clear how sending
an email address of a woman who would later
become your wife promotes conspiratorial
objectives.
Exhibit 239 summary statement: N. Jones
requests an IBB email address and account for
K. Jones. Doc. 365-1 at 27.
Declarant: N. Jones
Date: 7/5/2013
Offered Against: N. Jones, K. Jones
Defendants’ objections: Date; Routine
business of lawful organization; Membership
requirement. Doc. 369 at 84.
Denied. A routine IT request doesn’t qualify
as a statement that intends to promote
conspiratorial objectives.
Exhibit 242 summary statement: Email chain
involving Creeden, N. Jones, and
McManamon outlining their Rome
itinerary—which gave the travelers 10 days
after arrival before N. Jones was scheduled to
address the conference. The itinerary
includes a tour of the Greek ruins. Doc. 365-
1 at 21–22.
Declarant: Creeden
Dates: 3/1/22
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Routine business of
a lawful organization; Membership
requirement. Doc. 369 at 86.
Granted. Engaging in plans with other IBB
members to travel internationally implicates
the charged conspiracy because it involves
allegedly unnecessary and lavish trips. See
Doc. 1 at 20. An email chain that
communicates travel plans with fellow
conspiracy members thus advances the
conspiratorial objectives.
The government can’t offer this statement
against McManamon without a further
showing of his membership in the conspiracy,
however.
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35
Exhibit 250 summary statement: “IVP John
Fultz informs N. Jones that he would like to
speak to IBB attorney Jason McClitis about
the Article 17 charges and other matters. N.
Jones responds and stonewalls Fultz’s request
to speak to IBB counsel.” Doc. 365-1 at 20.
Declarant: N. Jones
Dates: 4/19/23
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Defensive activity;
Membership requirement. Doc. 369 at 91.
Defendant Creeden’s objection: Seeks legal
advice. Id.
Denied. The government asserts that this
statement served to “conceal the activities of
the conspiracy.” Doc. 365-1 at 17. The
government hasn’t demonstrated that attorney
McClitis was part of the conspiracy or that
preventing Fultz from speaking with McClitis
would serve to conceal the activities of the
conspiracy.
Exhibit 251 summary statement: K. Stapp
emails attorney Jason McClitis a copy of
IBB’s relocation policy. Doc. 365-1 at 14.
Declarant: K. Stapp
Date: 5/22/22
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objection: Membership
requirement. Doc. 369 at 92.
Defendant Creeden’s objection: Seeks or
conveys legal advice. Id.
Denied. The government asserts that this
statement “was made to facilitate and transact
the business of the conspiracy.” Doc. 365-1
at 14. But it never explains how it does so.
Transmitting a policy to an attorney—without
more—doesn’t promote conspiratorial
objectives. And the government makes no
effort to explain or further support its proffer
about how transmitting a policy advances a
conspiracy goal. The government thus hasn’t
shouldered its burden.
Exhibit 252 summary statement: “K. Stapp
responds to request by attorney David Elbaor
seeking a list of all persons receiving
relocation payments and the amounts . . . K.
Stapp responds” with a spreadsheet. Doc.
365-1 at 14–15.
Declarant: K. Stapp
Date: 2/7/23
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objection: Membership
requirement. Doc. 369 at 93.
Defendant Creeden’s objection: Seeks or
conveys legal advice. Id.
Denied. The government asserts that this
statement “was made to facilitate and transact
the business of the conspiracy.” Doc. 365-1
at 14–15. But it never explains how it does
so. Transmitting a spreadsheet to an
attorney—without more—doesn’t promote
conspiratorial objectives. And the
government makes no effort to explain or
further support its proffer about how
transmitting a spreadsheet advances a
conspiracy goal. The government thus hasn’t
shouldered its burden.
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Exhibit 255 summary statement: “W.
Creeden emails to M. Stapp asking why the
memo outlining IBB’s expense policies
prepared for N. Jones was sent to Tim
Simmons.” Doc. 365-1 at 15.
Declarant: Creeden
Date: 4/4/23
Offered Against: N. Jones, Creeden,
McManamon, K. Jones.
Defendants’ objections: Contradicts
government’s in-furtherance theory;
Membership requirement. Doc. 369 at 94.
Denied. The government asserts that Creeden
“was concerned about information concerning
their expenses reaching Executive Council
Members outside of the conspiracy.” Doc.
365-1 at 15. Defendants argue that Creeden’s
question was “information-seeking, not
concealment.” Doc. 369 at 94. Our Circuit
directs courts to evaluate in-furtherance
statements not “on its actual effect in
advancing the goals of the conspiracy, but on
the declarant’s intent in making the
statement.” Perez, 989 F.2d at 1578.
Creeden’s intent is uncertain here. The court
thus concludes the government hasn’t
shouldered its burden to show Creeden’s
question “intended to promote the
conspiratorial objectives.” Id. (quotation
cleaned up).
Exhibit 257 summary statement: Describing
email chain about N. Jones and Fairley’s
upcoming attendance at 2014 World Energy
Conference in Madrid. “N. Jones responds to
the group and says that he would volunteer to
serve as a ‘wingman’ and join them, but K.
Jones has a long memory.” Doc. 365-1 at 19.
Declarant: N. Jones, Fairley
Date: 4/4/14; 4/5/14; 4/11/14; 3/14/14
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Date; Narrative;
Membership Requirement. Doc. 369 at 95.
Granted in part; denied in part. Engaging
in plans with other IBB members to travel
internationally implicates the charged
conspiracy because it involves allegedly
unnecessary and lavish trips. See Doc. 1 at
20. The portion of the email chain that
communicates travel plans and international
conference attendance thus are intended to
promote the conspiratorial objectives.
The government can’t offer this email chain
against McManamon without a further
showing of his membership in the conspiracy,
however.
N. Jones’s “wingman” comment, on the other
hand, constitutes a “mere narrative.” Perez,
989 F.2d at 1578. It “serves no immediate or
future conspiratorial purpose” and thus
doesn’t qualify as an in-furtherance statement.
Exhibit 261 summary statement: “Article 17
Hearing Letters against IVPs.” Doc. 365-1 at
2.
Declarant: McManamon, Creeden
Date: June 5, 2023
Offered Against: N. Jones, Creeden,
McManamon
Denied. The government’s request is too
broad. It describes a category of letters, not
an individualized statement. The court
already clarified that it can’t assess the Rule
801(d)(2)(E) requirements for categories—
only for statements.
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Defendants’ objections: Defensive activity;
Membership requirement. Doc. 369 at 97.
Exhibit 262 summary statement: “N. Jones
responds to an email inquiry by Legacy
Professionals about hours worked by Jones
for IBB/Affiliates and bonuses paid to him by
the Bank of Labor by stating, ‘. . . we work all
waking hours . . . how can we report 56 or 60
when it’s the whole time we are awake 7 days
a week?’” Doc. 365-1 at 15.
Declarant: N. Jones
Date: 4/13/20; 4/15/20
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objection: Membership
requirement. Doc. 369 at 98.
Granted. The government asserts that this
statement served “to conceal the true
activities of the conspiracy” and was “in
response to his dual roles at IBB and Bank of
Labor[.]” Doc. 365-1 at 15. The court
concludes the statement promotes the
following conspiratorial objective charged in
the Indictment: to “enrich themselves by
demanding full-time employment with the
Bank of Labor” while performing “little or no
services as employees for the Bank of Labor.”
Doc. 1 at 25.
The government can’t offer this statement
against McManamon without a further
showing of his membership in the conspiracy,
however.
Exhibit 263 summary statement: “Email
from W. Creeden to K. Stapp requiring
unanimous IEC approval for all
expenses . . . Creeden forwards bills/expenses
to the accounting department to be paid.”
Doc. 365-1 at 15–16.
Declarant: Creeden
Date: 6/20/23
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objection: Contradicts the
furtherance theory; Membership requirement.
Doc. 369 at 99.
Denied. The government argues that this
statement “was made to facilitate and transact
the business of the conspiracy.” Doc. 365-1
at 15–16. It explains that “Creeden knew that
the IEC did not previously review his and N.
Jones’s expenses[.]” Id. And then it asserts
that this statement “attempt[s] to dissuade K.
Stapp from implementing IEC review of
expenses.” Id. But, as defendants suggest,
Doc. 369 at 99, the argument that an email
requiring approval appears to conflict with the
charged conspiracy and thus doesn’t
“facilitate and transact the business of the
conspiracy,” Doc. 362-1 at 15–16.
James Proffer Statement (Oral) 	Ruling
Oral statement: “K. Stapp brought
questionable expenses made by N. Jones to
the attention of W. Creeden and Creeden
responded that N. Jones would have to answer
for the Department of Labor for the expense.”
Doc. 365-1 at 16.
Granted. The government asserts this
statement “was made regarding the activities
of the conspiracy and to conceal the
activities.” Doc. 365-1 at 16. Our Circuit
considers statements made to “allay a co-
conspirator’s fears” to qualify as in-
furtherance statements. Perez, 989 F.2d at
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Declarant: K. Stapp
Source: K. Stapp
Date: 2010–2022
Offered Against: N. Jones, Creeden
Defendants’ objections: Contradicts
government’s furtherance theory; Too
indefinite. Doc. 369 at 110.
1578 (quotation cleaned up). This statement
promotes the conspiratorial objectives by
allaying fears that K. Stapp might stand
accountable for the allegedly questionable
expenses.
Oral statement: N Jones’s statement “fuck
that policy,” referring to IBB vacation policy
passed in 2015. Doc. 365-1 at 6–7.
Declarant: N. Jones
Source: T. Brown
Date: 2015
Offered Against: N. Jones, Creeden
Defendant N. Jones concedes that this
statement satisfies Rule 801(d)(2)(E). Doc.
370 at 1.
Defendant Creeden’s objections: Narrative;
Too indefinite. Doc. 369 at 103.
Granted. The Indictment alleges as part of
the conspiracy that defendants enriched
themselves by failing to enforce the IBB
policy about cashing out vacation time. Doc.
1 at 23. This statement furthers that
conspiratorial objective by “induc[ing]
enlistment or further participation in the
group’s activities” by leading the charge
against the vacation policy and its
enforcement. Perez, 989 F.2d at 1578
(quotation cleaned up).
Oral Statement: “K. Stapp was told by
Newton Jones to retroactively pay K. Jones
for alleged work done for IBB while K. Jones
was still living in Ukraine. N. Jones told K.
Stapp that K. Jones would be hired to
translate handbills and organizing material
into Russian.” Doc. 365-1 at 16.
Declarant: K. Stapp, N. Jones
Source: K. Stapp
Date: 2015
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Too indefinite;
Membership requirement. Doc. 369 at 111.
Granted. The Indictment identifies this back
payment of K. Jones as part of the charged
conspiracy for members of the Jones
Enterprise to enrich each other. Doc. 1 at 20–
21. This statement was intended to promote
that conspiratorial objective of enrichment.
The government can’t offer this statement
against McManamon without a further
showing of his membership in the conspiracy,
however.
Oral statement: “N. Jones instructed K. Stapp
to start Brian Daly’s health insurance on day
one contrary to insurance provisions. N.
Jones and W. Creeden instructed K. Stapp and
Tyler Brown to allow Daly’s widow to keep
health insurance for life and K. Stapp told T.
Brown that ‘I guess we are in the business of
Granted in part; denied in part.
Instructions to start health insurance on a
given day or to allow widow to maintain that
health insurance despite no work by B. Daly
furthers the objectives of the conspiracy—a
misuse of union funds for personal benefit.
This portion of the statement is thus
admissible under Rule 801(d)(2)(E). But K.
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39
committing insurance fraud.’” Doc. 365-1 at
6, 7 (listing same statement twice).
Declarant: T. Brown
Source: T. Brown
Date: April 2018
Offered Against: N. Jones, McManamon
Defendants’ objections: Narrative;
Membership Requirement. Doc. 326 at 104.
Stapp’s embedded statement about being in
the business of insurance fraud doesn’t
promote the objectives of the conspiracy—it
simply describes them. The court thus denies
the government’s request for the business-of-
insurance-fraud portion of the statement.
The government can’t offer this statement
against McManamon without a further
showing of his membership in the conspiracy,
however.
Oral Statement: Creeden asks why Brian
Opland—who contests him in an election for
International Secretary Treasurer—is wasting
everyone’s time because there’s no way
Opland can win. Doc. 365-1 at 28.
Declarant: Creeden
Date: 2016
Offered Against: N. Jones, Creeden
Defendants’ objections: Routine business of
lawful organization; Too indefinite. Doc. 369
at 113.
Denied. This statement reveals internal IBB
politics. It doesn’t promote conspiratorial
objectives or serve to further the conspiracy.
That is, Creeden’s statement doesn’t do
anything for the conspiracy. It sounds like
just typical election-speak from one candidate
to another.
Oral statement: “After Tom Baca questioned
the need for international travel, Jones
bragged to Amy Wiser about not inviting
Baca on another trip and not speaking to him
for a year.” Doc. 365-1 at 8.
Declarant: N. Jones
Source: A. Wiser
Date: 2018–2022
Offered Against: N. Jones, Creeden
Defendants’ objections: Narrative; Too
indefinite. Doc. 369 at 107.
Denied. The government hasn’t
demonstrated that Amy Wiser is a co-
conspirator. Without such a showing, this
statement doesn’t qualify for descriptors that
might otherwise encompass it. For example,
such a statement could “reassure members of
a conspiracy’s continued existence” if Wiser
was a member or “allay a co-conspirator’s
fears[.]” Perez, 989 F.2d at 1578 (quotation
cleaned up). Without showing Wiser’s status
as a member or co-conspirator, however, the
statement doesn’t align with that intent.
Oral statement: “N. Jones told T. Brown to
expense a side trip that Brown took with his
wife while traveling in Europe for an IBB
meeting even though the trip was a personal
vacation for T. Brown.” Doc. 365-1 at 7.
Declarant: N. Jones
Source: T. Brown
Date: 2019
Granted. N. Jones’s direct instruction to
Brown to expense a personal vacation to IBB
promoted the conspiracy’s objectives by
“induc[ing] enlistment or further participation
in the group’s activities[.]” Perez, 989 F.2d at
1578 (quotation cleaned up).
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Offered Against: N. Jones, Creeden
Defendant N. Jones concedes that this
statement satisfies Rule 801(d)(2)(E). Doc.
370 at 1.
Defendant Creeden: No Creeden nexus; Too
indefinite. Doc. 369 at 105
Oral statement: “There must be a mole at
headquarters.” Doc. 365-1 at 6.
Declarant: N. Jones
Source: T. Brown
Date: 2020
Offered Against: N. Jones, Creeden
Defendants’ objections: Defensive activity;
Too indefinite. Doc. 369 at 106.
Granted. The government asserts this “co-
conspirator statement was made to reassure
members of the conspiracy’s continued
existence and to identify person(s) divulging
the conspiracy activities.” Doc. 365-1 at 6.
The court concludes that identifying a mole
could serve to promote conspiratorial
objectives by allaying fears that the
conspiracy is dissolving. Reassurance and
allaying fears qualify as in-furtherance
statements under Circuit precedent. Perez,
989 F.2d at 1578.
Oral statement: Describes Creeden and
McManamon flagging unauthorized airfare to
Ukraine and N. Jones stating he had other
business overseas, so he flew through Ukraine
as that was cheaper. Doc. 365-1 at 3.
Declarants: N. Jones, Creeden
Source: T. Simmons
Date: Spring 2023
Offered Against: N. Jones, Creeden,
McManamon
Defendants’ objections: Contradicts
furtherance theory; Too indefinite;
Membership requirement. Doc. 369 at 102.
Denied. This statement doesn’t align with
any of the “wide array of statements” the
Circuit has identified as in-furtherance
statements. Alcorta, 853 F.3d at 1137.
Instead, it involves two conspiracy members
flagging behavior that would fall within the
conspiratorial objectives.
Oral statement: Describes a discussion about
the office layout for the new IBB
headquarters where K. Stapp voiced concern
about the position of computer screens such
that IBB employees could see IBB payroll
information on the screens. N. Jones stated in
response, “Kathy, I have to think of the
aesthetics!” Doc. 365-1 at 16.
Declarants: N. Jones, K. Stapp
Source: K. Stapp
Date: 2023
Denied. The government supports its proffer
of this statement with the following: “This
statement was made regarding the activities of
the conspiracy.” Doc. 365-1 at 16. Such
support doesn’t explain how office layout and
concerns about payroll displaying on screens
promotes the conspiratorial objectives. The
court thus concludes the government hasn’t
shouldered its burden to demonstrate this
statement was made in furtherance of the
conspiracy.
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Offered Against: N. Jones, K. Stapp
Defendants’ objections: Routine business of
lawful organization; Too indefinite;
Membership requirement. Doc. 369 at 112.
V. 	Conclusion
The court concludes the government has demonstrated the existence of a conspiracy by a
preponderance of the evidence. And it has shown that N. Jones, Creeden, Fairley, K. Stapp, and
T. Brown were members of that conspiracy—again by a preponderance of the evidence. The
court denies a couple of the government’s proffered statements because they don’t qualify for the
exception to the hearsay rule under Rule 801(d)(2)(E) based on the conspiracy’s start date. The
“in furtherance of the conspiracy” requirement also precludes a pretrial finding that of some
statements qualify under 801(d)(2)(E), as set forth in the table above.
The court concludes the following proffered statements—identified by the government’s
exhibit numbers— preliminarily qualify for the exception to the hearsay rule identified in
Federal Rule of Evidence 801(d)(2)(E): 82, 83, 92-b, 95, 96, 142, 152, 153, 155, 156, 159, 162,
164, 166, 175, 194-e, 217, 218, 231, 232, 242, and 262. The court expands its original ruling to
include proffered statements in exhibits 25, 53, 78, and 127 as preliminarily qualifying for the
Rule 801(d)(2)(E) exception.
A few other proffered statements also qualify under Rule 801(d)(2)(E), but their exhibit
numbers require further explanation. The government’s Supplement duplicated two exhibit
numbers: 144 and 232. The court concludes just one of the proffered statements identified as
exhibit 144 preliminarily qualifies under Fed. R. Evid. 801(d)(2)(E): the statement describing a
communication about a $1.5 million line of credit owned by IBB. Doc. 365-1 at 12. The court
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concludes both proffered statements designated as exhibit 232 preliminarily qualify under Fed.
R. Evid. 801(d)(2)(E).
The court also finds the following oral statements—identified by declarant and date—
preliminarily qualify for the exception to the hearsay rule identified in Fed. R. Evid.
801(d)(2)(E):
• 	K. Stapp 2010–2022. Doc. 365-1 at 16.
• 	N. Jones 2015. Id. at 6–7.
• 	K. Stapp 2015. Id. at 16.
• 	N. Jones 2019. Id. at 7.
• 	N. Jones 2020. Id. at 6.
Finally, the court grants in part and denies in part—as set forth above—the government’s
request that the following statements qualify under Fed. R. Evid. 801(d)(2)(E): Exhibit 213,
Exhibit 257, and oral statement Tyler Brown April 2018.
IT IS THEREFORE ORDERED BY THE COURT THAT the government’s
Amended Motion for Admission of Coconspirator Statements (Doc. 288) is granted in part and
denied in part.
IT IS SO ORDERED.
Dated this 11th day of May, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree_
Daniel D. Crabtree
United States District Judge
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