Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PRETRIAL MOTIONS BENNETT, Chief Judge. TABLE OF CONTENTS I.BACKGROUND. *D ^ ...... 946 A. The Original And Superseding Indictments. . ...... 946 B. The Co-Defendant’s Tidal. ...... 948 C. The Pretrial Motions In Johnson’s Case. ...... 950 II. LEGAL ANALYSIS. 950 A. The Government’s Motions.... 950 1. The motion to exclude alibi defense 950 a. Arguments of the parties. ......950 b. Analysisc i. Rule 12.1....... 951 ii. Johnson’s non-compliance ........ 951 iii. The appropriate remedy.............. 953 2. The motion for an anonymous jury......... 955 a. Arguments of the parties.. .......... 955 b. Analysis.......... 955 3. The motion to admit evidence of defendant’s attempted suicide ............ 956 a. Arguments of the parties..:.......... 957 b: Analysis ...:.......... 957 4. The motion to admit statements by decedents.......... 959 a. The statements in question. ......... 959 i. Statements by DeGeus. ......... 959 ii. Statements by Nicholson .......... 960 b. Admissibility of DeGeus’s statements. .......... 960 i. Arguments of the parties. .......... 960 ii. Analysis . .......... 962 c. Admissibility of Nicholson’s statements . .......... 969 i. Arguments of the parties. .......... 969 ii. Analysis . .......... 969 5. The motion to exclude evidence on aspects of the death penalty .......... 970 a. Arguments of the parties............ 970 b. Analysis........... 971 i. Jury selection v. “guiltphase”. ............ 971 ii. Death penalty issues that “arose” in conversations............ 971 iii. Deterrent effect of the death penalty............ 972 6. The motion to exclude evidence of Cutkomp’s instances of public exposure. ...... 974 a. Arguments of the parties........ 974 b. Analysis. ...... 975 7. The motion to admit a replica firearm. ...... 976 a. Additional factual background. ...... 976 b. Arguments of the parties. ...... 976 c. Analysis. ...... 976 B. Johnson s Motions. ...........978 1. The motion for change of venue. ...........978 a. Arguments of the parties ... ...........978 b. Analgsis.. ...........980 i. Applicable law... ...........980 ii. Application of the law.. ...........985 2. The motion for factual findings.. ...........989 a. Arguments of the parties .... ...........989 b. Analysis... ...........990 3. The motion in limine for evidence suppressed as to the first indictment... ...........991 a. Arguments of the parties... ...........991 b. Analysis... ...........992 4. The motion to suppress McNeese’s evidence... ...........993 a. Additional evidence. ... ...........993 b. Arguments of the parties... ...........993 c. Analysis... ...........995 5. Request for Honken trial transcript... ...........995 III. CONCLUSION . .995 Four and one-half years after the first of two indictments against the defendant, and more than eleven years after the defendant allegedly participated in the five murders upon which most of the charges against her are based, the defendant’s trial is now merely months away. Therefore, the court must now resolve the first round of pretrial motions in this case, including some motions that were held in abeyance during the trial of a co-defendant, who was convicted and given a death sentence by a jury, as well as several newly-filed motions. These cases, and the companion case against the co-defendant, have engendered unprecedented publicity in Iowa, in part, because they are federal death-penalty cases in a state that does not, itself, have the death penalty. For these and other reasons, the government moved for an “anonymous” jury and the defendant moved for a change of venue. Numerous other motions are also before the court. Even where the parties’ motions seem to tread familiar ground, already traversed in the co-defendant’s case, differences in circumstances may make the path to resolution of those motions anything but clear, and entirely new issues may place the court and the parties in terra incognita. I. BACKGROUND A. The Original And Superseding Indictments In two separate indictments, a grand jury charged defendant Angela Johnson with a variety of charges arising, principally, from her alleged involvement in the murders in 1993 of five witnesses to the drug-trafficking activities of Johnson’s sometime boyfriend, Dustin Honken. The grand jury handed down the first seven-count indictment on July 26, 2000, and the second ten-count indictment on August 30, 2001. On April 25, 2002, the government filed its original notice in each case of its intent to seek the death penalty on all of the charges against Johnson relating to the murder of witnesses, that is, Counts 1 through 5 of the first indictment and all ten of the charges in the second indictment. Those notices identified the statutory aggravating factors that the government contends warrant the imposition of the death penalty under the applicable death penalty statutes. On August 23, 2002, the government filed superseding indictments in both cases against Johnson. The superseding indictment in the first case against Johnson, Case No. CR 00-3034-MWB, reiterated and expanded the seven counts of the original indictment. It charged the following offenses: five counts of aiding and abetting the murders of witnesses Gregory Nicholson, Lori Duncan (Nicholson’s friend), Amber Duncan and Kandi Duncan (Lori Duncan’s daughters, ages 6 and 10, respectively), and Terry DeGeus, respectively, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (C), 1512(a)(2)(A) or 1513(a)(1)(A) and (C), 1111, and 2; one count of aiding and abetting the solicitation of the murders of witnesses Timothy Cutkomp and Daniel Co-been, in violation of 18 U.S.C. §§ 373(a)(1) and 2; and one count of conspiracy to interfere with all seven witnesses, in violation of 18 U.S.C. § 371. The August 23, 2002, superseding indictment in Case No. CR 01-3046-MWB, like the original indictment in that case, charged Johnson with five counts of killing witnesses while engaging in a drug-trafficking conspiracy (“conspiracy murder”), in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2; and five counts of killing the same witnesses in furtherance of a continuing criminal enterprise (“CCE murder”), also in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. More specifically, Counts 1 through 5 of the superseding indictment in Case No. CR 01-3046-MWB charged that, on or about July 25, 1993, or in the case of Terry DeGeus, on or about November 5, 1993, while engaging in an offense punishable under 21 U.S.C. § 841(b)(1)(A) and 846, relating to a conspiracy to manufacture and distribute 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine between 1992 and 2000, Angela Johnson intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of Gregory Nicholson, Lori Duncan, Amber Duncan, Kandi Duncan, and Terry DeGeus, respectively, and that such killings resulted, all in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Counts 6 through 10 of the superseding indictment charged that, on or about July 25, 1993, or in the case of Terry DeGeus, on or about November 5, 1993, while working in furtherance of a continuing criminal enterprise between 1992 and 2000 in violation of 21 U.S.C. § 848(c), Angela Johnson intentionally killed and counseled, commanded) induced, procured, and caused and aided and abetted the intentional killing of Gregory Nicholson, Lori Duncan, Amber Duncan, Kandi Duncan, and Terry DeGeus, respectively, and that such killings resulted, all in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. ■On September 24, 2002, after the filing of the superseding indictments, the government filed a notice in Case No. CR 00-3034-MWB withdrawing its notice of intent to seek the death penalty for violations of the witness-tampering statute, 18 U.S.C. § 1512. However, the government reiterated its intention to continue pursuing the death penalty in Case No. CR 01-3046-MWB as to the “conspiracy murder” and “CCE murder” charges pursuant to 21 U.S.C. § 848. Indeed, on November 14, 2002, the government filed a notice of intent to seek the death penalty on all ten charges in the superseding indictment in Case No. CR 01-3046-MWB. Although the charges in the two indictments survived various challenges by Johnson, on November 15, 2004, the court granted the government’s November 3, 2004, renewed motion in Case No. CR 00-3034-MWB to dismiss, without prejudice, counts 1-5 and portions of count 7 of the superseding indictment. The government’s goal in seeking to dismiss the charges or parts of charges in question was to eliminate the need for two juries or two trials and to prevent possible error, in light of a ruling of the Eighth Circuit Court of Appeals on interlocutory appeals that certain evidence is not admissible as to the counts of Case No. CR 00-3034-MWB that involve the alleged murders of five witnesses, but is admissible as to charges that involve the alleged murders of the same witnesses in Case No. CR 01-3046-MWB. As a result of the partial dismissal of the first indictment, the charges in Case No. CR 00-3034-MWB consisted of one count of aiding and abetting the solicitation of the murders of witnesses Cutkomp and Cobeen, in violation of 18 U.S.C. §§ 373(a)(1) and 2, and one count of conspiracy to interfere with witnesses Cutkomp and Cobeen, in violation of 18 U.S.C. § 371, but the latter charge no longer related to the murders of the other five witnesses, Nicholson, the Dun-cans, and DeGeus. On December 8, 2004, the government filed a Second Superseding Indictment in Case No. CR 01-3046-MWB, which essentially consolidated the remaining counts in the two separate cases into a single indictment. Thus, Counts 1 through 5 of the Second Superseding Indictment charge the “conspiracy murders” of Nicholson, the Duncans, and DeGeus; Counts 6 through 10 charge the “CCE murders” of Nicholson, the Duncans, and DeGeus; new Count 11 charges aiding and abetting the solicitation of Dean Donaldson and Anthony Altimus to murder Timothy Cutkomp; and new Count 12 charges conspiracy to solicit the murder of Daniel Cobeen, Timothy Cutkomp, and Special Agent John Graham. On December 14, 2004, the government moved to dismiss the superseding indictment in Case No. CR 00-3034-MWB, because all charges against Johnson were then consolidated into a single charging document in Case No. CR 01-3046-MWB. Johnson concurred in the dismissal of that indictment on December 15, 2004. Therefore, on December 15, 2004, the court dismissed the superseding indictment in Case No. CR 00-3034-MWB, and denied as moot all motions pending it that case, leaving Case No. CR 01-3046-MWB as the only case against Johnson. B. The Co-Defendant’s Trial In a companion case, Case No. CR 01-3047-MWB, the Grand Jury charged Dustin Lee Honken with seventeen charges that were essentially identical to the charges in the indictments against Johnson. As in Johnson’s case, the government sought the death penalty on the five counts of “conspiracy murder” and the five counts of “CCE murder.” In Honken’s case, as in this one, the government moved for an “anonymous” jury, and in Honken’s case, the court granted the motion. Therefore, jurors’ names, addresses, and places of employment, and the names of spouses and them places of employment, were not disclosed to the parties, their counsel, or the public, either before or after selection of the jury panel. However, each juror’s community of residence and the “nature” of his or her employment, and the “nature” of his or her spouse’s employment, were disclosed to the parties, their counsel, and the public. Jury selection began in Honken’s case on August 17, 2004, and continued over twelve days until a jury was empaneled on September 8, 2004. The “merits phase” of the trial began that day and continued, usually four days a week, until the issue of Honken’s guilt or innocence was submitted to the jury on October 11, 2004. The jury returned a verdict on October 14, 2004, finding defendant Honken guilty of all seventeen charges. The “penalty phase” of Honken’s trial commenced on October 18, 2004, and concluded on October 21, 2004, at which time the jury began its “penalty phase” deliberations. An issue of improper contacts with a juror arose during the “penalty phase” deliberations. Ultimately, on October 25, 2004, the court excused one juror and substituted an alternate juror. The jury was then instructed to begin its “penalty phase” deliberations anew. On October 27, 2004, the jury rendered its “penalty phase” verdict, finding that a sentence of life imprisonment should be imposed upon Honken for the murders of Greg Nicholson, Lori Duncan, and Terry DeGeus, but that a sentence of death should be imposed for the murders of Amber and Kandi Duncan. The jury contact issue and the verdicts, in both the “merits phase” and the “penalty phase,” garnered considerable additional media coverage. C. The Pretrial Motions In Johnson’s Case Twelve motions are currently pending in the case against Johnson: (1) the government’s February 28, 2004, Motion In Limine Regarding Alibi Defense (docket no. 187); (2) the government’s May 25, 2004, Renewed Motion For Anonymous Jury And Request For Court Order (docket no. 197, which renews docket no. 188); (8) the government’s November 3, 2004, Renewed Motion To Introduce Evidence Of Defendant’s Attempted Suicide (docket no. 203); (4) defendant Johnson’s November 4, 2004, Motion For Change Of Venue (docket no. 204), which Johnson supplemented, at the court’s direction, on December 4, 2004 (docket no. 227); (5) the government’s November 15, 2004, Request For Hearing And Pretrial Ruling Regarding Admissibility Of Out Of Court Statements Made By Decedents Gregory Nicholson And Terry DeGeus (docket no. 207); (6) defendant Johnson’s November 16, 2004, Motion For Factual Findings Re: Instructions To Elicit (docket no. 208); (7) defendant Johnson’s November 16, 2004, Motion In Limine Re: Evidence Suppressed As To First Indictment (docket no. 209); (8) defendant Johnson’s Motion To Suppress (docket no. 210), as amended November 17, 2004 (docket no. 211), which seeks to suppress statements made by Johnson to jailhouse informant Robert McNeese while Johnson was incarcerated in the Benton County Jail on the ground that the statements were obtained in violation of Johnson’s Fifth Amendment right to counsel as guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (9) defendant Johnson’s November 20, 2004, Application [For] Preparation Of Trial Transcript In United States v. Honken (docket no. 216); (10) the government’s December 3, 2004, Motion In Limine To Bar Discussion Or Evidence Of Certain Aspects Of The Death Penalty (docket no. 224); (11) the government’s December 3, 2004, Motion In Limine Regarding Timothy Cutkomp’s Instances Of Public Exposure (docket no. 225); and (12) the government’s December 3, 2004, Rule 104(c) Motion For Admission Of A Replica Firearm (docket no. 226). Most of the motions were duly resisted. By order dated November 17, 2004, the court set a hearing on December 20, 2004, for all motions filed on or before December 7, 2004. At the hearing, the government was represented by Assistant United States Attorney C.J. Williams in Cedar Rapids, Iowa, and Assistant Iowa Attorney General Thomas Henry Miller in Des Moines, Iowa. Defendant Angela Johnson was personally present at the hearing and was represented by Alfred E. Willett of Terpstra, Epping & Willett in Cedar Rapids, Iowa; Dean A. Stowers of Rosenberg, Stowers & Morse in Des Moines, Iowa; and Patrick J. Berrigan of Watson & Dameron, L.L.P., in Kansas City, Missouri. At the hearing, the parties agreed that no part of the hearing would be closed and that no part of this ruling would need to be sealed. The court will address each of the pending motions in turn, although not necessarily in the order in which they were filed. II. LEGAL ANALYSIS. A. The Government’s Motions 1. The motion to exclude alibi defense The court will begin its analysis with the government’s various motions. The first of these motions is the government’s February 23, 2004, Motion In Limine Regarding Alibi Defense (docket ho. 187). In that motion, the government moves the court for an order barring Johnson from presenting evidence supporting or argument alleging an alibi defense. a. Arguments of the parties In support of this motion, the government contends that Johnson has failed to comply with Rule 12.1 of the Federal Rules of Criminal Procedure, because she has failed to respond to the government’s request for notice of alibi defense or the court’s orders compelling such a response. Thé government points out that the court rejected Johnson’s challenge to the sufficiency of the government’s request for notice of alibi, that the court then gave Johnson until March 7, 2003, to provide a notice in response to the government’s request, but that Johnson has never done so. At oral arguments, the government reiterated that the purpose of the disclosure rule is to avoid surprise and that its concern was that Johnson would produce at trial a witness who would testify that Johnson was wjth the witness on the dates identified by the government, at such a time and place that Johnson could not have committed or participated in the crimes charged. The government conceded, however, that Johnson could present evidence as to her whereabouts in the Mason City area at various times during the periods identified in the government’s request for notice of alibi defense. The government also points out that Rule 121 provides that the court may exclude the testimony of any undisclosed alibi witness, if the defendant fails to comply with the rule., At the oral arguments, the government asserted that, in addition to excluding undisclosed witnesses, the court could exclude documentary evidence or testimony by the defendant herself that would support an alibi defense. The parties were given until December 24, 2004, to research the issue of the scope of appropriate remedies for failure to comply with Rule 12.1 and to file supplements to then-briefs on this issue. On December 21, 2004, the government e-mailed the court and opposing counsel that counsel’s research suggested that barring a defendant from testifying as to an alibi would probably violate the defendant’s Sixth Amendment rights, and that Rule 12.1 does not require a defendant to disclose documents in support of an alibi defense. The government nevertheless suggested that, should Johnson testify as -to an alibi, the government might be entitled to an instruction to the jury that Johnson had not previously disclosed such an alibi and/or a continuance to prepare to rebut such testimony, and that, if she attempted to rely on documents in support of such a defense, the court had the inherent power to sanction her for failure to comply with a discovery request for alibi documents. However, the government also suggested that the court should not consider such scenarios until and unless they arose at trial. In an amended response to the government’s motion in limine and in oral arguments, Johnson maintained her position that the alibi démand by the government was inadequate to trigger her obligation to respond. However, acknowledging that the court has rejected her position, Johnson also contends that the government has thoroughly investigated her whereabouts on the dates identified by the government. She also contends that the government’s motion is overbroad, because evidence showing that she was at locations other than those identified by the government during the pertinent two-day periods in July and November 1993 should be admissible, because it does not constitute an “alibi defense,” even if it may be “evidence supporting” such a defense. Finally, she contends that the government’s motion is premature, because trial in this matter is still some months away. b. Analysis i. Rule 12.1. Rule 12.1 of the Federal Rules of Criminal Procedure provides, in pertinent part, as follows: (a) Government’s Request for Notice and Defendant’s Response. (1) Government’s Request. An attorney for the government may request in writing that the defendant notify an attorney for the government of any intended alibi defense. The request must state the time, date, and place of the alleged offense. (2) Defendant’s Response. Within 10 days after the request, or at some other time the court sets, the defendant must serve written notice on an attorney for the government of any intended alibi defense. The defendant’s notice must state: (A) each specific place where the defendant claims to have been at the time of the alleged offense; and (B) the name, address, and telephone number of each alibi witness on whom the defendant intends to rely. H* «N ♦!» »5* (e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant’s alibi. This rule does not limit the defendant’s right to testify. Fed. R. Crim. P. 12.1(a) & (e). Thus, the rule, inter alia, establishes a government-initiated process for determining whether the defendant will assert an alibi defense, identifies the information that the defendant must provide in response to the government’s request for notice of an alibi defense, and provides sanctions for failure to comply with the disclosure requirements of the rule. ii. Johnson’s non-compliance. Johnson plainly has not complied with the requirements of the rule. The government provided the request for notice of an alibi defense required by Rule 12.1(a)(1), but Johnson did not respond as required by Rule 12.1(a)(2). Instead, Johnson litigated the question of whether or not the government’s request was adequate, which she was entitled to do, but she lost. She did not then take an interlocutory appeal of the question and she has presented no compelling reason for the court to revisit the question now. Moreover, under the circumstances presented here, upon denial of her challenge, Johnson was required to respond to the government’s request by the deadline set by the court. FED. R. CRIM. P. 12.1(a)(2) (the defendant’s response to the government’s request is due within ten days or at such other time as the court sets). However, she did not file any timely response. Therefore, Johnson has not complied with the rule and will not now be heard to complain that either the government’s original request or the government’s motion to exclude alibi evidence based on Johnson’s failure to respond was “premature.” Nor is Johnson excused from filing a response or from sanctions for failure to do so by her contention that the government has already thoroughly investigated her whereabouts during the periods identified in the government’s request for notice of alibi defense. The disclosure requirements are imposed in the context of the government’s investigation of a defendant’s whereabouts and the parties’ disclosure of witnesses. As the Advisory Committee explained, Rule 12.1 will serve a useful purpose even though rule 16 now requires disclosure of the names and addresses of government and defense witnesses. There are cases in which the identity of defense witnesses may be known, but it may come as a surprise to the government that they intend to testify as to an alibi and there may be no advance notice of the details of the claimed alibi. The result often is an unnecessary interruption and delay in the trial to enable the government to conduct an appropriate investigation. The objective of rule 12.1 is to prevent this by providing a mechanism which will enable the parties to have specific information in advance of trial to prepare to meet the issue of alibi during the trial. Fed. R. CRIM. P. 12.1, Advisory Committee Notes; see also id., 1975 Enactment, Committee Action (“The major purpose of a notice-of-alibi rule is to prevent unfair surprise to the prosecution.”); accord United States v. Webster, 769 F.2d 487, 490 (8th Cir.1985) (“[T]he purpose of the alibi notice requirement is to prevent surprise and undue delay.”). Thus, the rule recognizes that, despite government investigation and the parties’ disclosure of witnesses, specific disclosure of an alibi defense is necessary to avoid unfair surprise to the government. Johnson was also required to disclose any contention that she was at a location other than the location identified by the government on the dates in question, not just the identity of witnesses who may testify in support of an alibi defense. In United States v. Jones, 255 F.3d 916 (8th Cir.2001), the court distinguished between “evidence” relating to an alibi defense and a “witness” relating to an alibi defense, albeit in the context of the defendant’s assertion that the government had failed to comply with the reciprocal disclosure requirements of Rule 12.1(b) for rebuttal evidence, where the defendant had given notice of an alibi defense. Jones, 255 F.3d at 919; see also Fed. R. Crim. P. 12.1(b) (providing that, if the defendant provides notice of an alibi defense in response to a Rule 12.1(a) request, the government must disclose any “rebuttal witness” to the defendant’s alibi defense). In Jones, the defendant asserted that the trial court had erred by permitting the government to use a document showing that the alibi witness had been in jail at the time that she said she was with the defendant, because the government had not disclosed the document pursuant to Rule 12.1(b). The Eighth Circuit Court of Appeals, however, held that Rule 12.1(b) requires disclosure of witnesses, not evidence. Jones, 255 F.3d at 918. In contrast, Rule 12.1(a), requires the defendant to disclose, in response to a request from the government, not only “the name, address, and telephone number of each alibi witness on whom the defendant intends to rely,” see Fed. R. CRIM. P. 12.1(a)(2)(B) (emphasis added), but also “each specific place where the defendant claims to have been at the time of the alleged offense.” Fed. R. Crim. P. 12.1(a)(2)(A). Thus, Johnson was required to disclose any contention that she was at any locations other than those identified by the government during the two-day periods in July and November 1993 identified in the government’s request for notice of alibi defense, because any contention that she was somewhere else falls squarely within the disclosure requirements of Rule 12.1(a)(2)(A). She has not done so. Finally, Johnson was obligated by subsection (c) of the rule to disclose any alibi witness discovered after the deadline for disclosures required by subsections (a) and (b). See Fed. R. Crim. P. 12.1(c) (imposing on both parties a continuing duty to disclose witnesses relevant to an alibi defense, if “(1) the disclosing party learns of the witness before or during trial; and (2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier”). Consequently, if Johnson has any knowledge of any alibi witnesses at this time— which seems doubtful, where she has never identified any such witnesses in any pleading or filing in these cases — she has not made a timely disclosure of those witnesses. iii. The appropriate remedy. Under the circumstances presented here, the real question is what evidence, if any, Johnson should be barred from presenting in support of any alibi defense as a result of her failure to comply with Rule 12.1 and the court’s deadline for an alibi disclosure. See FED. R. CRIM. P. 12.1(e) (“the court may ” impose sanctions for failure to comply with the rule) (emphasis added); id., Advisory Committee Notes (“The use of the term ‘may’ [in subsection (e) ] is intended to make clear that the judge may allow the alibi witness to testify if, under the particular circumstances, there is cause shown for the failure to conform to the requirements of the rule”). The government seeks an order barring Johnson from presenting evidence supporting or argument alleging an alibi defense. Johnson, however, contends that she may still present evidence that she was at locations other than those identified by the government at various times during the two-day periods in July and November 1993 identified in the government in its request for notice of alibi defense, because such evidence does not constitute an “alibi defense,” even if it may be “evidence supporting” such a defense. The remedy that Rule 12.1(e) expressly provides for failure to comply with the disclosure requirements of the rule is “ex-clu[sion of] the testimony of any undisclosed witness regarding the defendant’s alibi.” FED. R. CRIM. P. 12.1(e) (emphasis added). Some time ago, however, in United States v. Webster, 769 F.2d 487 (8th Cir.1985), the Eighth Circuit Court of Appeals rejected the government’s argument that it was inappropriate to give an alibi instruction to the jury, where the defendant had purportedly failed to disclose an alibi witness. Webster, 769 F.2d at 490. Although the court noted, first, that the defendant had in fact complied with the alibi notice requirement, the court also held that “[the defendant’s] alleged failure to comply with the alibi notice requirement is not strictly relevant to refusal to give an alibi instruction.” Id. Rather, the court noted that the remedy provided in Rule 12.1 “is exclusion of the testimony of any undisclosed witness.” Id. (emphasis in the original) (citing Rule 12.1(d), which contained the “remedies” provision at the time). Thus, even had the defendant failed to comply with the notice of alibi requirements, refusal to instruct on an alibi defense would not have been a proper remedy. Id. Just, as an instruction on an alibi defense is not precluded by failure to comply with Rule 12.1, this court concludes that a defendant’s argument concerning an alibi defense is not precluded by failure to comply with the rule, because the “remedies” provision of the rule, subsection (e), only authorizes exclusion of testimony of an undisclosed alibi witness. Furthermore, the rule expressly provides that the remedy of exclusion of alibi witnesses does not limit Johnson’s right to. testify. See FED. R. CRIM. P. 12.1(e) (Rule 12.1, including its “remedies” provision, “does not limit the defendant’s right to testify”). This caveat would be superfluous if the rule were intended to prohibit a defendant from testifying in support of an alibi. Therefore, notwithstanding her failure to comply with Rule 12.1, Johnson may argue, on the basis of her own testimony, that she was not at the locations alleged by the government on the dates in question. Consequently, contrary to the government’s request, the court will not exclude any and all argument alleging an alibi. Nevertheless, the defendant cannot be allowed to sandbag the government concerning any known alibi witnesses in an attempt to “gain ‘a tactical advantage that would minimize the effectiveness of cross-examination, and' the ability of the government to present rebuttal ’evidence.’ ” United States v. Henderson, 241 F.3d 638, 650 (9th Cir.2000) (quoting the trial court), cert. denied, 532 U.S. 986, 121 S.Ct. 1634, 149 L.Ed.2d 494 (2001). Furthermore, the court finds that Johnson’s conduct suggests willful noncompliance with the rule. First, Johnson has steadfastly refused to disclose any alibi witnesses, despite the government’s original request and the court-ordered deadline for her disclosure after her challenge to the sufficiency of the government’s request failed. Second, she has continued to evade any obligation to disclose alibi witnesses by continuing to assert failed challenges to the government’s request after the issue has been litigated, and by asserting new “straw man” arguments that she should not have to disclose any alibi witnesses, because the government’s request is premature, and because the government has already investigated her whereabouts. See Fed. R. Ceim. P. 12.1(c) (imposing on both parties a continuing duty to disclose witnesses relevant to an alibi defense, if “(1) the disclosing party learns of the witness before or during trial; and (2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier”). Johnson’s failure to disclose such a witness can only be excused for “good cause,” but there is no evidence of “good cause” in the record. See Fed. R. ÜRiM. P. 12.1(d) (providing exceptions to the disclosure requirements of subsections (a), (b), and (c) for “good cause”). Therefore, the government’s motion will be granted to the extent that Johnson will not now be permitted to present any testimony of any witness — other than herself— that she was at locations outside the Mason City area or at any location such that she could not have committed the charged murders at the times identified in the government’s request for notice of alibi defense, unless she demonstrates that she did not learn of the witness or could not have learned of the witness through reasonable diligence prior to the time a disclosure is offered. She may also present her own testimony as to her whereabouts, any non-testimonial evidence of her whereabouts, and argument in support of an alibi defense premised on such evidence. Finally, she may present evidence as to her whereabouts in the Mason City area at the times identified in the gwernment’s request for notice of .alibi defense. The court will consider, however, an appropriate instruction concerning Johnson’s failure to make a timely disclosure of any alibi defense, should Johnson actually ■ attempt to assert such a defense. 2. The motion for an anonymous jury a. Arguments of the parties The next motion by the government addressed by the court at the hearing on December 20, 2004, was the government’s May 25, 2004, Renewed Motion For Anonymous Jury And Request For Court Order (docket no. 197), which renewed the government’s original February 23, 2004, motion for an anonymous jury (docket no. 188). In its original motion, the government requested that the court empanel an anonymous jury; submit a proposed jury questionnaire to the jury; and obtain criminal histories on members of the jury venire, compare the criminal histories with the venire members’ self-disclosures, and inform the parties of any criminal history not self-disclosed. The government asserted that Johnson posed sufficient danger to jurors and potential jurors that they should be anonymous, but that a “neutral” explanation for the jurors’ anonymity would mitigate any adverse impact upon Johnson’s right to a fair trial. In its renewed motion, the government pointed out that Johnson filed no timely resistance to its original motion. Therefore, the government contended that the court should grant its motion for an anonymous jury. Although Johnson filed no timely resistance to the government’s original motion; she resisted the government’s renewed motion on May 28, 2004, but only in Case No. CR 00-3034-MWB. On December 16, 2004, Johnson filed a still more belated resistance in Case No. CR 01-3046-MWB, after the court provided the parties in this case, by e-mail on December 13, 2004, with a copy of its detailed ruling on the anonymous jury issue in Honken’s case. In her resistances, Johnson contended that, whatever the basis for the court’s decision to use an anonymous jury in Honken’s case, the record in her case did not support such a measure. Despite the court’s conclusion that an “anonymous” jury was required in the companion case against Johnson’s co-defendant, Dustin Honken, at a conference prior to the December 20, 2004, hearing in Johnson’s case, and again during that hearing, the court indicated its intention to use instead an “innominate” jury in this case — that is, a jury whose members were identified by number in open court, but about whom the parties were provided all of the information required by 18 U.S.C. § 3432. The court indicated to the parties that it considered such a measure appropriate in a case that has engendered considerable media attention to protect jurors from publicity and unwanted contacts by members of the public. The government then represented on the record that it was withdrawing its motion for an anonymous jury, on the understanding that the court would order an “innominate” jury. Johnson continued to resist use of an “innominate” jury, asserting that, even if the jurors were told that such a measure was to protect them from publicity and unwanted contacts by members of the public, some jurors might nevertheless draw an inference that the measure was to protect them from a dangerous defendant, which would compromise Johnson’s right to a fair trial. b. Analysis Although the government has withdrawn its motion for an anonymous jury, the court must still consider Johnson’s objections to identifying jurors and potential jurors by number during court proceedings. A jury with this low degree “anonymity” might be described as “innomi-nate,” rather than “anonymous,” as only the jurors’ names are kept confidential and only from the public. See Merriam-Webster’s Collegiate Diotionary 603 (10th ed.1995) (defining “innominate” as “having no name; unnamed”); Cf. United States v. Carpa, 271 F.3d 962, 964 n. 1 (11th Cir.2001) (describing a jury as “innominate” rather than “anonymous,” because “[t]he only facts not known to the parties were names, addresses, and exact places of work”), cert. denied, 537 U.S. 889, 123 S.Ct. 137, 154 L.Ed.2d 151 (2002). Notwithstanding Johnson’s objections, the court finds that such a measure is appropriate in this case. In United States v. Peoples, 250 F.3d 630 (8th Cir.2001), the Eighth Circuit Court of Appeals observed that “[t]he district court has wide discretion ... to require the use of numbers for identification [of jurors] in any case.” Peoples, 250 F.3d at 635 (emphasis added). In light of the extensive publicity this case and the companion case against Honken have already received, and the extensive publicity that can reasonably be anticipated as Johnson’s case goes to trial, the court finds that it is appropriate to require the use of numbers for identification of jurors in court in order to protect juror privacy from excessive media attention and from intrusion by other interested members of the public, and thereby also to limit the potential for jurors to be exposed to extra-judicial information. The court acknowledges that even an “innominate” jury could have some impact upon the defendant’s right to a fair trial. However, the Eighth Circuit Court of Appeals, like many other courts, has found that the negative impact of a truly “anonymous” jury upon the defendant’s rights can be mitigated by an instruction to the jury providing a “neutral” explanation for their anonymity. See, e.g., United States v. Darden, 70 F.3d 1507, 1533 (8th Cir.1995) (finding “that the District Court took reasonable precautions to ensure that the empanelment of an anonymous jury would not result in undue prejudice against the defendants,” where “[t]he court told the venire persons that they were being identified by numbers rather than their names so that members of the media would not ask them questions”), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996). Here, the court finds that such a “neutral” explanation would also sufficiently mitigate any potential negative impact of using an “innominate” jury upon the defendant’s rights. Furthermore, in this case, such an explanation would match the actual reason for using numbers rather than names, so that there would be no dissembling in the explanation given to the jury nor any reason for jurors to infer any other reason for such a measure. Therefore, while not “anonymous,” the prospective jurors and the jurors ultimately selected to serve in this case will be identified in court only by numbers. Johnson’s counsel, however, will be given the full, disclosures ordinarily required by 18 U.S.C. § 3432. See 18 U.S.C. § 3432 (except in circumstances the court finds are not present here, “[a] person charged with [a] capital offense shall at least three entire days before commencement of trial be furnished with ... a list of the veniremen. ...”) (emphasis added). 3. The motion to admit evidence of defendant’s attempted suicide The next motion by the government now before the court is the government’s November 3, 2004, Renewed Motion To Introduce Evidence Of Defendant’s Attempted Suicide (docket no. 203), which renews an original motion, filed April 19, 2002 (docket no. 42). The motion involves evidence that Johnson attempted to commit suicide immediately after it became public knowledge that law enforcement authorities had recovered the alleged murder victims’ remains. a. Arguments of the parties In support of its original motion, which the government contended was pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure, the government contended that it should be allowed to introduce evidence of Johnson’s attempted suicide, because the attempted suicide is circumstantial evidence of Johnson’s guilt. In its renewed motion to admit the evidence, which the government now asserts is pursuant to either Rule 12(d) of the Federal Rules of Criminal Procedure or Rule 104 of the Federal Rules of Evidence, the government points out that Johnson’s resistance to the original motion, which Johnson filed on April 25, 2002, asserted only that the evidence was somehow derivative of evidence obtained from a jailhouse informant. The government points out that it filed a reply on April 30, 2004, requesting that the defendant respond to the merits of the motion, but she did not then do so. On December 16, 2004, Johnson filed a very belated response to the government’s renewed motion. In that response, Johnson acknowledged that, under applicable case law, the evidence of a suicide attempt is relevant to prove consciousness of guilt, but that it would be improper for the government to offer or argue for the admission of such evidence for any other inference than that presented in the government’s motion in limine. Moreover, despite contrary case law, which she also acknowledges, Johnson asserts that the danger of unfair prejudice in this case substantially outweighs the probative value of this evidence, such that it should be excluded, although she makes no attempt to articulate what the unfair prejudice would be. At oral arguments, Johnson clarified that an example of prejudicial use of the evidence would be the government arguing in the course of a “penalty phase” that the jury “should finish what Johnson started.” 6. Analysis The court will not simply rely on Johnson’s failure to file a timely resistance to the government’s renewed motion, although it could properly do so. See. N.D. IA. L.R. 7.1(f) (“If no timely resistance to a motion is filed, the motion may be granted without prior notice from the court.”). Rather, the court will explore, albeit briefly, the standards applicable to the admissibility of a defendant’s suicide attempt. The government is correct that some courts have recognized that a suicide or attempted suicide is admissible as evidence of “consciousness of guilt,” tantamount to a confession. See, e.g., Tug Raven v. Trexler, 419 F.2d 536, 543 (4th Cir.1969) (evidence of the suicide of the person in charge of gasoline-discharging operations on a barge that caught fire, killing a member of the crew of a tug boat moored next to the barge, eight days after that person testified in the Coast Guard investigation of the fire was admitted as possibly showing consciousness of guilt, on the ground that “suicide is a form of flight”), cert. denied, 398 U.S. 938, 90 S.Ct. 1843, 26 L.Ed.2d 271 (1970); see also State v. Mitchell, 450 N.W.2d 828, 831-32 (Iowa 1990) (noting that “[cjourts in Iowa and elsewhere have found evidence of suicide attempts relevant to show the defendant’s consciousness of guilt”) (citing cases). Some courts, however, have recognized that such evidence is at best equivocal, in the absence of evidence of the reasons for the suicide or -attempted suicide, because there could be numerous reasons for a suicide attempt other than consciousness of guilt on a charged offense. United States v. Southland Corp., 760 F.2d 1366, 1375 (2d Cir.1985) (giving as an example of equivocal, but nevertheless admissible evidence, evidence of a suicide to show consciousness of guilt, citing Tug Raven, 419 F.2d at 543); United States v. Goodman, 605 F.2d 870, 883 (5th Cir.1979) (evidence of a co-defendant’s suicide was not admissible on the ground that it was “tantamount to a confession,” in the absence of any evidence of why the co-defendant committed such an act). In Johnson’s case, although the government is correct that a jury could infer a “consciousness of guilt” for the charged murders from Johnson’s suicide attempt, a jury could reasonably infer that the attempt indicates consciousness of something else, such as consciousness of Honken’s guilt, consciousness that she had learned about or helped conceal the bodies only after the murders were committed, consciousness that she had been betrayed by a supposed fellow inmate, or consciousness that she had betrayed her former boyfriend’s secret. It could also demonstrate lack of faith in the judicial system to recognize her lack of involvement in crimes committed by another or her fear that Honken would retaliate against her for revealing his secret. Although the evidence of Johnson’s suicide attempt is, at best, equivocal, the court nevertheless acknowledges that it is at least marginally probative of her involvement in the murders, because it may make it more probable that she knew about and participated in the crimes, in that it suggests Johnson’s “consciousness of guilt” for the murders. See Fed. R. Evid. 401 (evidence is “relevant” if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable' than it would be without the evidence”). Where Johnson has made only a conclusory allegation of unfair prejudice, but has made no effort to demonstrate how the evidence of her suicide attempt is unfairly prejudicial or potentially confusing, such that the prejudice arising from admission of the evidence would outweigh its marginal probative value, see Fed. R. Evid. 403 (allowing exclusion of evidence where its probative value is outweighed, inter alia, by the danger of unfair prejudice or confusion of the issues), the court will not speculate about possible unfairly prejudicial inferences that might arise from the evidence. On the other hand, Johnson has identified one potentially prejudicial argument that she contends the government should be precluded from making on the basis of the evidence of Johnson’s attempted suicide, an argument that the jury should “finish what Johnson started.” The government stated its doubts that such an argument was improper or that Rule 403 could be used to bar prejudicial argument as well as prejudicial evidence. The court finds that it does clearly have the authority to act when a prejudicial argument is made. See, e.g., Myres v. United States, 174 F.2d 329, 338-39 (8th Cir.1949) (holding that a district court properly sustained an objection to and instructed the jury to disregard improper statements, noting that “[t]he prompt action of the District Court prevented the improper argument from ripening into prejudicial error”); accord Koufakis v. Carvel, 425 F.2d 892, 901 (2d Cir.1970) (“It seems to us that the trial judge should not guess about the jurors’ reactions to an obviously improper argument. It is his responsibility to prevent counsel from continually making improper arguments and using slanderous and baseless epithets. The trial 'judge should have categorically ordered [the offending attorney] to stop making such remarks and given the strongest possible cautionary instruction.”). It follows, a fortiori, that when an objection is raised to a potentially prejudicial argument, the court may act to bar a party from making such an argument to the jury in the first place. Furthermore, the court finds no authority for the proposition that a defendant’s attempted suicide is an aggravating factor that may properly be considered by a jury to weigh in favor of imposing the death penalty pursuant to 21 U.S.C. § 848. Therefore, the court will not permit the government to argue, in the “merits phase” or the “penalty phase,” if any, on the basis of evidence that Johnson attempted to commit suicide, that the jury should “finish what Johnson started.” Furthermore, the court will limit the government’s arguments about the inferences to be drawn from Johnson’s attempted suicide to the inferences that the government has asserted in its motion will warrant admissibility of that evidence. Thus, in light of the court’s conclusion that the evidence of Johnson’s suicide attempt has some probative value to the issue of Johnson’s involvement or participation in the murders at issue in this case, in that it suggests a “consciousness of guilt” for those murders, and the lack of any showing of a countervailing ground for exclusion of the evidence, the government’s motion to admit evidence of Johnson’s suicide attempt for the purpose of showing her “consciousness of guilt” for the murders will be granted. The government may not, however, argue for any other inference to be drawn from that evidence without prior court approval, and is expressly precluded from arguing in the “merits phase” or the “penalty phase,” if any, on the basis of this evidence, that the jury should “finish what Johnson started.” 4. The motion to admit statements by decedents The next motion by the government now pending before the court is the government’s November 15, 2004, Request For Hearing And Pretrial Ruling Regarding Admissibility Of Out Of Court Statements Made By Decedents Gregory Nicholson And Terry DeGeus (docket no. 207). As in Honken’s case, the government explains that, prior to his death, Terry DeGeus made several statements to others about the nature and extent of the drug-trafficking conspiracy in which he was involved with Honken and Johnson; where he was going the evening that he disappeared, including specific statements that he was meeting Angela Johnson; and his concerns about being indicted by or called as a witness before a federal grand jury. The government also explains that Gregory Nicholson made various statements to law enforcement officers and testified before a grand jury about his relationship with Honken and others, including Angela Johnson, and their drug-trafficking activities. ■ a. The statements in question i. Statements by DeGeus. More specifically, the government contends that there will be evidence of the following statements by Terry DeGeus: (1) that De-Geus told Kristin Thompson that he was to pick up methamphetamine from Honken on March 17, 1993, the day that Honken was first arrested on drug charges, that the methamphetamine and some powder for “cutting” the methamphetamine was coming from out of state, and that Angela Johnson owed him $2,400 for methamphetamine; (2) that about a week before his disappearance, DeGeus asked his mother, Joanne DeGeus, if a subpoena had arrived for him, and that on November 5, 1993, he delivered his daughter, Ashley, to his mother’s home and told both his mother and his daughter that he was going to meet Angela Johnson; (3) that on November 5, 1993, DeGeus told his daughter, Ashley, that he was going to Angela Johnson’s house because she wanted to talk to him, that he was planning to pick up some things from Johnson, and that he would return by 12:30 a.m.; (4) that early in the evening of November 5, 1993, at DeGeus’s home, DeGeus told a friend, Aaron Ryerson, that he was going to see Angela Johnson; and (5) that on November 5, 1993, at approximately 7:00 p.m., when DeGeus ran into a Mend, Rhonda Hanson, at a grocery store in Britt, Iowa, DeGeus told Hanson that he was going to Mason City to see Angela Johnson. ii. Statements by Nicholson. The government also explains that, prior to his death, Gregory Nicholson gave statements to law enforcement officers and testified before a grand jury describing his drug-trafficking relationship with Honken and others, including Angela Johnson. More specifically, the government contends that there will be evidence that on March 17, 1993, while law enforcement officers were executing a search warrant for Nicholson’s home, Nicholson was questioned by Investigator Frank Stearns of the Mason City Police Department and that during that questioning, Nicholson made the following statements: (1) that some methamphetamine was hidden in his house and where it was; (2) that he got the methamphetamine from Honken; (3) that Honken had a “meth lab” in Arizona; (4) that Honken brought up shipments of methamphetamine to Iowa every couple weeks for approximately a year; (5) that Nicholson owed Honken money for the last shipmerit of methamphetamine; (6) that Honken dropped off methamphetamine to another person unknown to Nicholson in Mason City; (7) that Honken charged Nicholson $1,200 an ounce for pure methamphetamine, but that Nicholson resold it for $1,500 an ounce; and (8) that Honken was coming to Mason City that weekend and that Nicholson was willing to cooperate with law enforcement officers. Nicholson subsequently assisted law enforcement officers with a “controlled buy” of methamphetamine from Honken on March 21, 1993, at which time Honken was arrested. On April 20, 1993, DEA Special Agent David Mizejl interviewed Nicholson, at which time Nicholson made statements about his involvement with Honken and about Honken’s drug manufacturing and distribution enterprise. Later that same day, .Nicholson.appeared before a federal grand jury in Cedar Rapids, Iowa, at which time he provided sworn testimony about his involvement with, and knowledge of, Honken’s drug manufacturing and trafficking enterprise. However, the government did not identify any statements by Nicholson specifically relating to Angela Johnson. b. Admissibility of DeGeus’s statements i. Arguments of the parties. The government argues that neither the Constitution, federal law, the Federal Rules of Evidence, nor Supreme Court rulings bar the admission of the evidence of DeGeus’s statements. Contrary to its original arguments in Honken, the government concedes here that DeGeus’s statements are hearsay. The government argues that DeGe'us’s statements are nevertheless admissible, because they fall within several exceptions, including “present sense impression” (Rule 803(1)), “then existing mental state” (Rule 803(3)), and “forfeiture by wrongdoing” (Rule 804(b)(6)), the last exception premised on the government’s contention that DeGeus is unavailable to testify because Johnson killed him. The government also contends that admission of the statements would not violate Johnson’s confrontation rights under the standards set forth in either Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), or Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As to admissibility under Roberts, the government contends that the statements are reliable, under the circumstances, as merely informational and off-the-cuff, and that DeGeus is plainly unavailable, and that the hearsay exceptions upon which it relies are “firmly rooted.” As to admissibility under Crawford, the government contends that the statements were not “testimonial,” even if they were “hearsay,” so that Crawford does not apply. The government also contends that the hearsay exception for “forfeiture by wrongdoing” trumps or excludes the statements from the requirements set forth in Crawford. Johnson’s resistance to admission of De-Geus’s statements includes arguments both similar to and different from those raised in Honken’s resistance to admission of the same evidence. Taking the similar arguments first, Johnson resists admission of DeGeus’s statements under the hearsay exceptions cited by the government. According to Johnson, DeGeus’s statements were not “present sense impressions,” because none were made while, or immediately after, DeGeus perceived an event or condition, but refer to future events. She also contends that it is unclear how De-Geus’s comments to his mother about a subpoena could fit within this exception. She contends that the statements are not statements of DeGeus’s “then existing mental state,” because they are not sufficiently reliable or relevant. As to admissibility of the statements under the “forfeiture by wrongdoing” exception, Johnson contends that the statements were not offered “against” her, but “against” Honken, where it was Honken, not Johnson, who had been indicted at the time. She also contends that she did not engage or acquiesce in the wrongdoing that caused De-Geus to be unavailable, so that it is improper to admit such statements until her wrongdoing in procuring DeGeus’s absence has been proved. Furthermore, she contends that the wrongdoing that permits admission of the statements must be unrelated to the conduct for which she is on trial, or there would be a “murder victim’s” hearsay exception. She also argues that she did not intend to cause DeGeus’s unavailability as a witness against her, because DeGeus was not going to be a witness against her, but against Honken, at the time that he was killed. Johnson also asserts that DeGeus’s statements are not admissible under Rule 403, because they are highly prejudicial and only marginally relevant. Like Honken, Johnson contends that admission of DeGues’s statements is barred by the confrontation clause of the Sixth Amendment to the Constitution, although she does not assert precisely the same arguments in support of this contention. Johnson contends that admission of De-Geus’s statements violates the confrontation clause, because the statements do not fit within a “firmly rooted” hearsay exception, nor do they bear “particularized guarantees of trustworthiness.” In her most expansive argument, Johnson argues that the “forfeiture by wrongdoing” exception does not extinguish her rights under the confrontation clause. She contends that the right to confrontation trumps the “forfeiture by wrongdoing” exception, because it is a constitutional right, and she made no knowing and voluntary waiver of that right. She also contends that the “forfeiture by wrongdoing exception” is not a “traditionally recognized” hearsay exception that would overcome her right to confrontation, ■ where the government is attempting to expand that exception beyond the scope given to the rule under the common law. She reads pertinent cases to hold that only prior sworn testimony in the defendant’s presence was admissible in a later proceeding under, the common-law “forfeiture by wrongdoing” exception, but that the statements at issue here do not fit that requirement. She reiterated this contention as her key point during oral arguments. She, also contends that the “forfeiture by wrongdoing” exception does not apply to DeGeus’s statements, because the exception only applies to the admission of statements that qualify as “testimonial hearsay” made in a context in which the defendant had waived a right to confrontation. Turning to Johnson’s arguments that are entirely different from Honken’s on the issue of admissibility of DeGeus’s statements, Johnson contends, first, that the ex post facto clause of the Constitution bars the admission of the statements in question pursuant to Rule 804(b)(6) of the Federal Rules of Evidence. This is so, she contends, because the “forfeiture by wrongdoing” exception in Rule 804(b)(6) was only added to Rule 804 by amendment in 1997, several years aft