USA v. Jones et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
NEWTON JONES (01),
WILLIAM CREEDEN (02),
KATERYNA JONES (03),
LAWRENCE MCMANAMON (05),
Defendants.
Case No. 24-20070-DDC
MEMORANDUM AND ORDER
The government seeks a pretrial ruling that certain business records are admissible,1
allowing the government to introduce the records at trial without foundational testimony. Doc.
322 at 1. Defendants oppose the government’s request. Doc. 335. The court agrees with
defendants and denies the government’s motion. It explains this result, below.
The government has submitted six certificates of authenticity from six document
custodians. These certificates attempt to authenticate the following categories of evidence:
• 	Attachment A: PhotoShelter documents produced in response a Rule 17(c) subpoena,
Doc. 322-1 at 2;
1 	The government’s motion sends mixed signals about its aims—i.e., whether it wants the records
admitted or declared authentic. Compare Doc. 322 at 1 (titling the motion as one seeking a pretrial ruling
on admissibility), with id. at 6 (concluding the motion by asking for a pretrial ruling on questions of
authenticity). Defendants read the government’s motion to seek a pretrial ruling on admissibility. Doc.
335 at 3. That’s a fair reading—the motion is titled “Government’s Supplemental Motion Pursuant to
Fed. R. Evid. 104 for Pretrial Ruling on Admissibility of Business Records.” Doc. 322 at 1. And the
body of the motion also ask the court for an “Order resolving preliminary questions of admissibility[.]”
Id. To avoid prejudicing defendants by reading the motion another way, the court follows suit and
concludes that the motion asks the court to admit the records.
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• 	Attachment B: International Executive Council ballots and assignment letters produced
in response to a Rule 17(c) subpoena, id. at 4;
• 	Attachment C: vacation tracking records produced in response to a Rule 17(c) subpoena,
id. at 6;
• 	Attachment D: an employee vacation spreadsheet, id. at 8–9;
• 	Attachment E: emails from nine accounts, id. at 11–12;
• 	Attachment F: health plan documents for the International Brotherhood of Boilermaker’s
Employee Health Care Plan (IBBEHC), IBBEHC participant eligibility records and
correspondence, COBRA billing and payment records, emails between a company called
Wilson-McShane and the IBBEHC about specified participants, and claims listings for
specified individuals, id. at 14–15.
These records cover a lot of ground. And the certifications don’t identify the records
specifically. Nor are the records at issue attached to the certifications.
The government cites Fed. R. Evid. 902(11), which sets parameters for self-
authenticating records of regularly conducted activities. Rule 902(11) provides that the
following records are self-authenticating:
The original or a copy of a domestic record that meets the requirements of Rule
803(6)(A)-(C), as shown by a certification of the custodian or another qualified
person that complies with a federal statute or a rule prescribed by the Supreme
Court. 	Before the trial or hearing, the proponent must give an adverse party
reasonable written notice of the intent to offer the record—and must make the
record and certification available for inspection—so that the party has a fair
opportunity to challenge them.
These records of regularly conducted activities are admissible if they satisfy this standard and the
standards in Fed. R. Evid. 803(6). Rule 803(6) provides a hearsay exception for records of a
regularly conducted activity if the record at issue meets the following criteria:
(A) the record was made at or near the time by—or from information transmitted
by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
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(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances 	of 	preparation 	indicate 	a 	lack 	of 	trustworthiness.
“Rules 902(11) and 803(6) are thus designed to work in tandem.” United States v. Komasa, 767
F.3d 151, 155 (2d Cir. 2014).
“The essential component of the business records exception is that each actor in the
chain of information is under a business duty or compulsion to provide accurate information.”
United States v. Ary, 518 F.3d 775, 787 (10th Cir. 2008) (quotation cleaned up). So, if “any
person in the process is not acting in the regular course of business, then an essential link in the
trustworthiness chain fails.” Id. (quotation cleaned up).
When the court reviews the six certificates of authenticity provided here with the
government’s motion, a split emerges. The first three—government’s Attachments A, B, and
C—use the normal, business-record-type language. The other three do not. So, the court
organizes its analysis around these two distinct cohorts. It begins with Attachments A, B, and C.
Recall that Attachment A authenticates “PhotoShelter documents,” Attachment B
authenticates “International Executive Council ballots and assignment letters,” and Attachment C
authenticates “vacation tracking records[.]” Doc. 322-1 at 1–6. The International Brotherhood
of Boilermakers produced these records in response to a defense subpoena, Doc. 126-1 at 5, and
the government maintains that the government has satisfied Rule 902(11)’s notice requirement
because “the records have been available to Defendants in discovery[,]” Doc. 322 at 5.
Defendants complain that the certificates themselves don’t identify specifically the records that
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the government seeks to admit, thus depriving them of the notice to which Rule 902(11) entitles
them. Doc. 335 at 3–4. They have a point.
Rule 902(11) requires “reasonable” notice. And so, in a case with as many documents as
this one, a certificate of authenticity should make it clear which documents it covers. See Adams
v. United States, No. CV 03-49-BLW, 2011 WL 925570, at *2 (D. Idaho Mar. 11, 2011)
(rejecting certification that “fail[ed] to specifically identify the documents to which it refers”);
United States v. Hall, No. 05-CR-36, 2006 WL 8448112, at *7 (E.D. Tenn. Mar. 8, 2006)
(sustaining defense objection to affidavit failing to advise defendants of specific documents).
Take Adams as an example. There, the court suggested that a certificate of authenticity’s lack of
specificity “could be cured by attaching to the certification a list of the documents produced,
identified by their Bates-stamp numbers.” 2011 WL 925570, at *2. But the government hasn’t
taken that step here. Instead, it’s opted to identify the documents merely by category.
Defendants insist that the general categories identified in the certificates and the subpoena don’t
suffice. Doc. 335 at 6. The court agrees with them. Indeed, the court previously rejected a
similar methodology when the government tried to admit coconspirator statements identified
only by category. What’s more, the government’s motion asks the court to admit these records
into evidence. That’s now how it works. The court admits specifically identified exhibits. A
generic description of documents won’t do. See United States v. Penn, 568 F. Supp. 3d 1135,
1139 (D. Colo. 2021) (suggesting review of document itself is critical where government seeks
to admit documents under Rule 902(11)). The court declines to admit these records on this basis
and this record.
The other three certificates of authenticity—Attachments D, E, and F—present three
distinct issues. The court tackles each one, in turn, below.
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Attachment D tries to authenticate a spreadsheet. Doc. 322-1 at 8–9. The declarant, an
IBB employee, created the spreadsheet in May 2022, at the request of former IBB employee
Tyler Brown. Id. at 8. And the declarant asserts that the spreadsheet “is not maintained in the
ordinary course of business, but instead reflects a compilation of information derived from
existing records.” Id. In short, the spreadsheet isn’t a business record in the sense that the
Federal Rules of Evidence use that term. Fed. R. Evid. 803(6)(B)–(C). And the government
hasn’t identified any other grounds for admitting this spreadsheet. See generally Doc. 322. The
court declines to admit this spreadsheet at this juncture.
Attachment E, which purports to authenticate email accounts, doesn’t aim to satisfy Rule
902(11). Doc. 322-1 at 11. Instead, that declaration is offered under Rule 902(13), which
declares certified records generated by an electronic process or system as self-authenticating.
But the government’s motion doesn’t mention Rule 902(13)—it moves for admission only under
Rule 902(11). Given this mismatch, a dissonance between the declaration and the motion, the
court declines to declare the emails admissible on this record.2 E.g., United States v. Moya, 5
F.4th 1168, 1192 (10th Cir. 2021) (explaining that litigants waive arguments “when they are
inadequately presented” (quotation cleaned up)).
2 	Defendants don’t appear to dispute that Attachment E authenticates the relevant documents under
Rule 902(13), but only for a limited purpose: the emails were sent or received at particular dates and
times between particular accounts. Doc. 335 at 10–11 (citing United States v. Edwards, No. 16-20070-
01/02-CM, 2019 WL 5196614, at *11 (D. Kan. Oct. 15, 2019) (“[A] custodian certificate will not suffice
for the government to authenticate any online communication’s substantive content.”)). If the
government seeks to admit the emails to prove substance they contain, then they must authenticate them
through the normal route, Rule 901, and move to admit them under a hearsay exception. See Edwards,
2019 WL 5196614, at *11 (“[T]o offer any email or other online communication to prove its substantive
content—content which is neither supplied nor verified respectively by [email providers]—the
government must independently authenticate the email’s or content’s author under Federal Rule of
Evidence 901 and provide a hearsay exclusion or exception for admitting the particular
communication.”).
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Attachment F seeks to authenticate a variety of IBBEHC-related documents under Rule
902(11) and 902(13). Doc. 322-1 at 14–15. The categories listed are broad ones: plan
documents, participant eligibility records and correspondence, COBRA records, emails, and
claims listings. Id. at 14. The court agrees with defendants. These categories don’t identify
sufficiently the documents to which the certificate refers. As though anticipating this problem,
the declaration claims that the records are “attached.” See id. But there wasn’t any attachment.
And the declaration isn’t clear about which categories the declarant authenticates under Rule
902(11) and which ones rely, instead, on Rule 902(13). This distinction matters. Some of the
documents are emails and, as avid footnote readers know already, Rule 902(11) doesn’t apply to
emails, and Rule 902(13) authenticates emails for only a limited purpose. Defendants also assert
that one of the other categories—claims listings—provides summaries subject to Fed. R. Evid.
1006’s requirements. Doc. 335 at 12. The government’s motion never cites Rule 1006. See
generally Doc. 322. And, without the documents to review, the court can’t assess whether
defendants are right that the claims listings are compilations.
In sum, this case has far too many exhibits for the government to rely on such a spare
showing. The court thus denies the government’s motion.
IT IS THEREFORE ORDERED BY THE COURT THAT the government’s Motion
Pursuant to Fed. R. Evid. 104 for Pretrial Ruling on Admissibility of Business Records (Doc.
322) is denied.
IT IS SO ORDERED.
Dated this 30th day of April, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge
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