Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ SECOND ROUND OF PRETRIAL MOTIONS BENNETT, Chief Judge. TABLE OF CONTENTS J. BACKGROUND.1049 A. The Original And Superseding Indictments.1049 B. The Co-Defendant’s Trial.1051 C. The Pretrial Motions In Johnson’s Case.1052 II. LEGAL ANALYSIS.1053 A. The Government’s Motion For Victim Witnesses To Be Present During Trial.1058 1. Arguments of the parties.1053 2. Analysis.1054 a. Consideration of the government’s supplemental argument.1054 b. Section 3510(b).1055 c. Section 3771.1055 B. The Government’s Motion To Use Witness Photographs During Arguments.1056 1. Arguments of the parties.1056 2. Analysis.1058 a. Latitude and discretion .1058 b. “Summary” exhibits.1058 c. “Demonstrative” exhibits .1059 d. Use of the photographs here .1060 C. The Government’s Motion To Determine Admissibility Of Audio Recordings .1063 1. Factual background .1063 2. Arguments of the parties.1064 3. Analysis.1065 D. Government’s Motion Concerning The Number Of Peremptory Challenges .1069 1. Arguments of the parties. CS Z£> o r — t 2. Analysis. rH to rH 1074 E. The Government’s Motion For Court-Ordered Mental Examination Of The Defendant. 1074 1. Background. 1075 2. Arguments of the parties. 1076 3. Analysis. 1076 a. Rule 12.2. b. Rule 12.2(b): Defendant’s notice 1077 i.Purpose of the provision. 1077 ii. The sufficiency of Johnson’s notices . 1081 c. Rule 12.2(c)(1): Court-ordered examination. 1081 i.The pertinent provision and its purpose. 1082 ii.Johnson’s request for an “outside taint team”. 1085 iii. Johnson’s demand for notice. 1085 iv. Johnson’s demand for Fifth and Sixth Amendment protections. 1091 v.Summary . 1091 d. Rule 12.2(c)(2) & (3): Disclosure and use of results. 1092 F. The Defendant’s To Strike The Death Penalty. 1092 1. Arguments of the parties. 1094 2. Analysis. 1094 G. The Defendant’s Motion To Exclude Prior Jury Determinations As To Honken . 1095 1. Arguments of the parties. 1096 2. Analysis. 1096 a. Honken’s 1997 conviction. 1096 b. Honken’s 2004 conviction and verdict for a death sentence.... 1097 H. The Defendant’s Motion For A Bill Of Particulars . 1097 1. Arguments of the parties. 1097 2. Analysis. 1098 I. The Defendant’s Motion To Strike Certain Allegations In Counts 6 Through 10. 1098 1. Arguments of the parties. 1098 2. Analysis. 1099 J. The Defendant’s Motion To Trifurcate The Proceedings. 1099 1. Arguments of the parties. 1099 a. Written submissions. 1100 b. Oral arguments. 1102 c. Post-hearing inquiry. 1103 2. Analysis. 1103 a. Constitutional requirements. 1104 b. Other grounds for “trifurcation”. 1104 i. Statutory limitations on the “information” presented at sentencing . 1105 ii. “Probative value” . 1106 iii. “Prejudice”. 1109 iv. “Confusion of the issues”. 1109 v. “Misleading the jury”. 1110 c. The remedy. lili III. CONCLUSION. The court recently resolved a dozen pretrial motions in this federal death-penalty case, some of which required the court and the parties to explore terra incognita. See United States v. Johnson, 354 F.Supp2d 939 (N.D.Iowa 2005). Several more pretrial motions, filed subsequently, were mooted by the government’s voluntary dismissal of the two non-capital charges against this defendant. Nevertheless, this matter is now before the court on a “second,” and hopefully “final,” round of pretrial motions involving nearly as many, and nearly as varied, motions as the “first round.” Some of the motions attempt to resolve, before trial, issues that arose during the separate trial of a co-defendant in a companion case, but others require the court and the parties to make further incursions into terra incognita. I. BACKGROUND To provide the necessary background to the present group of pretrial motions, the court must once again review the charges and the key procedural history in this case against Angela Johnson and the separate case against co-defendant Dustin Honken. The court must also add certain important incidents in that history that have occurred since the court’s ruling on the “first round” of motions. The review of the charges and procedural history begins with the two indictments filed against Johnson A. The Original And Superseding Indictments In two separate indictments, a grand jury charged defendant Angela Johnson with a variety of offenses 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 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 counselled, 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 Alti-mus 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. On January 11, 2005, the government moved to dismiss Counts 11 and 12 of the Second Superseding Indictment in Case No. CR 01-3046-MWB, stating that the government no longer had any intention of pursuing those charges. Johnson understandably concurred in the dismissal of those counts, because she had mounted several challenges to them. By order dated January 15, 2005, the court granted the government’s motion to dismiss Counts 11 and 12 and also denied as moot several motions pertaining to those counts. Thus, the only charges presently pending against Johnson are the charges of “conspiracy murder” in Counts 1 through 5 and the charges of “CCE murder” in Counts 6 through 10 of the Second Superseding Indictment in Case No. CR 01-3046-MWB. B. The Co-Defendant’s Trial On August 30, 2001, the Grand Jury also handed down an indictment in a companion case, Case No. CR 01-3047-MWB, charging Dustin Lee Honken with seventeen charges that were essentially identical to the charges in the original two 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.” Honken’s case proceeded to trial first. In Honken’s case, the government moved for an “anonymous” jury, and the court granted that motion. Therefore, jurors’ names, addresses, and places of employment, and the names of spouses and their 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. On December 16, 2004, the court heard evidence in support of post-trial motions in Honken’s case. However, briefing and argument on those post-trial motions are not yet complete and the court has not yet issued any ruling on those motions. C. The Pretrial Motions In Johnson’s Case The court and the parties agreed to a deadline of January 7, 2005, for pretrial motions in this case. However, to expedite the orderly and timely resolution of pretrial motions, the court set an interim deadline of December 7, 2004, for a “first round” of pretrial motions, with the original deadline of January 7, 2005, for a “second round” of motions. At a hearing in this case on December 20, 2004, the court heard all pretrial motions that had been filed on or before December 7, 2004. The court entered an order resolving those motions on January 3, 2005. As the court and the parties had anticipated, several more pretrial motions were filed on or before the “second round” deadline of January 7, 2005. More specifically, the motions now before the court are the following: (1) the defendant’s December 8, 2004, Motion To Strike Death Penalty (docket no. 230); (2) the defendant’s December 10, 2004, Motion In Limine Re: Prior Determinations Of Guilt And Punishment Re: Dustin Honken (docket no. 234); (3) the defendant’s December 23, 2004, Motion For Bill Of Particulars On Counts 1-12 (docket no. 253), to the extent that the motion pertains to the remaining Counts, Counts 1 through 10; (4) the defendant’s December 23, 2004, Motion To Strike Allegations Contained In Counts 6-10 (docket no. 254); (5) the government’s December 29, 2004, Motion To Permit Victim Witnesses To Observe The Guilt Phase Of Trial (docket no. 258); (6) the government’s December 29, 2004, Motion For Use Of Witness Photographs During Arguments (docket no. 259); (7) the government’s December 29, 2004, Motion For Pretrial Ruling Regarding Admissibility Of Audio Recordings (docket no. 260); (8) the government’s December 30, 2004, Motion For Equal Number Of Peremptory Challenges And Request For Pretrial Ruling (docket no. 261); (9) the government’s January 6, 2005, Motion For A Court Ordered Mental Examination Of Defendant, And Related Matters (docket no. 270); and (10) the defendant’s January 7, 2005, Motion To Trifurcate Proceedings (docket no. 274). All of the motions were duly resisted. By order dated January 11, 2005, the court set a hearing for January 27, 2005, on all motions filed on or before January 7, 2005. 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 Terps-tra, Epping & Willett in Cedar Rapids, Iowa; Dean A. Stowers of Rosenberg, Stowers & Morse in Des Moines, Iowa; and Patrick J. Berrigan of Watson & Dam-eron, L.L.P., in Kansas City, Missouri. Neither party requested the closure of any part of the hearing or the sealing of any part of the ruling on the “second round” of pretrial motions. II. LEGAL ANALYSIS The court will address each of the pending motions in turn, although not necessarily in the order in which those motions were filed. Instead, the court will begin with the motions filed by the government, then turn to the motions filed by the defendant. A. The Government’s Motion For Victim Witnesses To Be Present During Trial The first motion the court will address is the government’s December 29, 2004, Motion To Permit Victim Witnesses To Observe The Guilt Phase Of Trial (docket no. 258). In that motion, the government requests that the court allow all “victim witnesses” to be present during the “merits phase” of the trial, including “victim witnesses” who may testify during the “merits phase.” Johnson resisted this motion on January 7, 2005 (docket no. 273). The government filed a supplement to its motion on January 16, 2005 (docket no. 285), citing additional statutory authority for the presence of the “victim witnesses.” Johnson filed no written response to the government’s supplement, although she did respond at the hearing on January 27, 2005. 1. Arguments of the parties The government contends that a number of family members of the murder victims are likely to testify in the “penalty phase” of this matter regarding the impact on their families of the offenses charged. The government contends, further, that some of the family members are also expected to testify during the “merits phase” concerning discrete factual events surrounding the disappearance of the murder victims and to identify certain clothing and other items recovered during various searches. In its original motion, the government contended that, pursuant to 18 U.S.C. § 3510(b), “victim witnesses” cannot be excluded from any of the proceedings in this capital case. In her resistance, Johnson asserted that § 3510(b) is inapplicable to this prosecution pursuant to Title 21. In its supplement, filed after Johnson’s resistance, the government changed the basis for its motion. The government acknowledges that § 3510(b) is only directly applicable to capital prosecutions pursuant to Title 18. The government now asserts that, since filing its original motion, it has learned of provisions of the Justice For All Act of 2004, codified at 18 U.S.C. § 3771, which are applicable here. The government contends that several “victim witnesses,” whom it now identifies by name and relationship to the alleged murder vie-tims, fall within the statutory definition of “victims” in 18 U.S.C. § 3771(e). The government also asserts that § 3771(a)(3) expressly provides such “victims” with a right not to be excluded from the proceedings in this case, unless the court finds “by clear and convincing evidence” that the testimony of such “victims” would be “materially altered” by hearing other testimony. The government contends that Johnson cannot meet the heavy burden to show that the “victim witnesses” here will be so affected. The government also contends that the “victim witnesses” here are also excepted from the sequestration provisions of Rule 615, because they are authorized to be present at the proceedings by § 3771. Therefore, on the basis of different statutory authority, the government reiterates its request that “victim witnesses” be allowed to be present during the “merits phase” of the trial, even if they are likely to be witnesses in either the “merits phase” or the “penalty phase.” At the hearing on January 27, 2005, the government added that there was little likelihood that any testimony during the “merits phase” or “penalty phase” of Johnson’s trial could materially alter the testimony of the “victim witnesses,” because the “victim witnesses” have heard essentially all of the evidence already, because they were present at all stages of Dustin Honken’s trial. At the hearing on January 27, 2005, Johnson acknowledged that the law has changed with the passage and effective date of 18 U.S.C. § 3771. Therefore, she offers no resistance to the government’s motion to the extent that it relies on § 3771. 2. Analysis a. Consideration of the government’s supplemental argument The government’s assertion of the Justice For All Act of 2004 as a basis for the relief it requests did not appear in its original motion or brief. Indeed, the government did not assert that basis for relief until after Johnson had already responded to the government’s original motion. Thus, at first glance, the government’s assertion of the Justice For All Act of 2004 as a basis for relief is a new argument presented for the first time in what appears to be a “reply brief.” Ordinarily, inclusion of a new ground for relief in a reply brief is improper as a matter of motion practice in this court, see N.D. Ia. L.R. 7.1(g); Lorenzen v. GKN Armstrong Wheels, Inc., 345 F.Supp.2d 977, 992 n. 4 (N.D.Iowa 2004); Baker v. John Morrell & Co., 263 F.Supp.2d 1161, 1169 n. 1 (N.D.Iowa 2003), and, indeed, in this circuit. See Republican Party of Minn. v. Kelly, 247 F.3d 854, 881 (8th Cir.2001) (“It is well established that issues not argued in an opening brief cannot be raised for the first time in a reply brief,” citing United States v. Vincent, 167 F.3d 428, 432 (8th Cir.), cert. denied, 528 U.S. 848, 120 S.Ct. 124, 145 L.Ed.2d 105 (1999); South Dakota Mining Ass’n v. Lawrence County, 155 F.3d 1005, 1011 (8th Cir.1998); United States v. Davis, 52 F.3d 781, 783 (8th Cir.1995); French v. Beard, 993 F.2d 160, 161 (8th Cir.1993), cert. denied, 510 U.S. 1051, 114 S.Ct. 706, 126 L.Ed.2d 672 (1994)). However, in this case, the court finds that the government intended its “Supplemental Memorandum” to its motion as precisely that, a “supplement,” rather than a “reply.” Indeed, labeling the filing as a “Supplemental Memorandum” and filing it prior to the deadline expressly established by the court for responses to the “second round” of pretrial motions invited Johnson to respond to the additional arguments therein. Johnson has also had adequate time since the filing of the government’s “Supplemental Memorandum” to file a response or to seek leave to do so, if she was in doubt about her ability to respond under the applicable rules or the briefing schedule. Indeed, she conceded at the hearing on January 27, 2005, that the new authority cited by the government is controlling here and affords the relief that the government sought in its motion. Under these circumstances, the court deems it appropriate to consider the government’s “supplemental” ground for relief as well as its original ground. b. Section 3510(b) Johnson asserts, and the government all but concedes, that the authority on which it originally relied for relief, § 3510(b), is not directly applicable here. Section 3510(b) provides as follows: (b) Capital cases. — Notwithstanding any statute, rule, or other provision of law, a United States district court shall not order any victim of an offense excluded from the trial of a defendant accused of that offense because such victim may, during the sentencing hearing, testify as to the effect of the offense on the victim and the victim’s family or as to any other factor for which notice is required under section 3593(a). 18 U.S.C. § 3510(b). Thus, § 3510(b) contemplates the testimony of “victim witnesses” about matters for which notice is required under § 3593(a). However, section 3593(a) is not at issue in this death-penalty prosecution pursuant to 21 U.S.C. § 848. The court finds that it need not consider the validity of the government’s analogy between the applicable notice provision here, 21 U.S.C. § 848(h), and 18 U.S.C. § 3593(a), because there is, instead, another statutory provision that is directly applicable and dispositive of the government’s motion. c. Section 3771 As the government suggests in its “Supplemental Memorandum,” the provisions of the Justice For All Act of 2004, codified at 18 U.S.C. § 3771, are directly applicable here and do provide for the relief the government seeks. Section 3771 provides “crime victims” with certain rights during public court proceedings and parole proceedings involving the alleged perpetrator of a crime against them. See 18 U.S.C. § 3771. A “crime victim” is defined as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.” 18 U.S.C. § 3771(e). The statute provides, further, that “[i]n the case of a crime victim who is ... deceased, the legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights under this chapter, but in no event shall the defendant be named as such guardian or representative.” Id. In this case, the government has identified the following “victim witnesses”: Terry DeGeus’s father, mother, sister, two brothers, ex-wife, and daughter; Lori Duncan’s father, mother, brother, and sister, who are, respectively, Kandi and Amber Duncan’s grandfather, grandmother, uncle, and aunt; Kandi and Amber Duncan’s father, other grandfather, and other grandmother; and Greg Nicholson’s ex-wife, who is the mother of his children, and two daughters. Johnson does not dispute, and the court expressly finds, that each of these persons is either “a person directly and proximately harmed as a result of the commission of’ one or more of the federal offenses charged against Johnson, that is, the murders of Greg Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan, or Terry DeGeus, or that, owing to the deaths of these alleged murder victims in this case, the murder victims’ family members identified by the government are “representatives of the crime victim’s estate” or “family members.” Therefore, these persons qualify for the rights afforded by § 3771. Turning to those rights, 3771(a)(3) provides that a “crime victim” has “[t]he right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.” 18 U.S.C. § 3771(a)(3) (emphasis added). The statute provides, further, that “[before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be clearly stated on the record.” 18 U.S.C. § 3771(b). Johnson has made no attempt to show that any of the testimony of any of the identified “victim witnesses” would be “materially altered” by hearing other testimony in this case. 18 U.S.C. § 3771(a)(3). Furthermore, as the government suggests, each of these witnesses appears likely to testify during the “merits phase” only as to discrete factual events surrounding the disappearance of the murder victims and to identify certain clothing and other items recovered during various searches, which are not matters susceptible to “material alteration” from hearing the testimony of other witnesses. Also as the government suggests, Rule 615 of the Federal Rules of Evidence does not require sequestration of these “victim witnesses,” because those “victim witnesses” are “person[s] authorized by statute [§ 3771] to be present” during the proceedings. FED. R. EVID. 615. Therefore, the government’s December 29, 2004, Motion To Permit Victim Witnesses To Observe The Guilt Phase Of Trial (docket no. 258), as supplemented on January 16, 2005 (docket no. 285), will be granted. B. The Government’s Motion To Use Witness Photographs During Arguments The second motion the court will address is the government’s December 29, 2004, Motion For Use Of Witness Photographs During Arguments (docket no. 259). In this motion, which anticipates an issue that arose during the trial of co-defendant Dustin Honken, the government seeks leave to mount 8.5" x 11" photographs of witnesses, as they appeared while testifying, on 5' x 5' boards to be displayed in the background in the courtroom during the government’s closing arguments in the “merits” and “penalty” phases. The government also explains that its counsel may detach individual photographs to show the jury while referring to the testimony of particular witnesses. Johnson resisted this motion on January 7, 2005 (docket no. 272). At the hearing on January 27, 2005, the government added that it was exploring the feasibility of using Power Point or some kind of trial presentation software to show the witnesses’ photographs. These and other methods for providing the jurors with photographs of the witnesses, including making court employees responsible for taking the photographs and providing them to the parties and the jurors, and whether such photographs should be available to the jurors during both trial and deliberations, were discussed in the course of the hearing and will be considered below. 1. Arguments of the parties In support of this motion, the government contends that the parties are likely to call more than seventy-five witnesses in a trial likely to last more than three months. Consequently, the government contends that showing the jurors photographs of witnesses, as they appeared while testifying, will make it easier for jurors to recall the witnesses’ testimony. The government also contends that showing the jurors the number of witnesses is a persuasive way of demonstrating to the jury the amount of evidence pointing to Johnson’s guilt and the appropriateness of the death penalty for her crimes. The government argues, further, that use of such photographs falls within the wide latitude afforded parties in closing arguments. Finally, the government asserts that Johnson would also be entitled to use the photographs to refresh jurors’ recollections of testimony and to argue, in opposition to the government’s suggestions about the import of the number of witnesses, that the “quality” of evidence is more important than mere “quantity” of evidence. Johnson, however, resists this motion. Johnson contends that the government’s proposed use of the photographs to demonstrate the supposed “strength” of the evidence and the appropriateness of the death penalty is “inappropriate and inconsistent with the law.” However, Johnson does not cite any applicable law on this point in her resistance, although in a subsequent paragraph she cites O’Malley, Federal Jury Practice and Instructions (5th ed. 2000) § 14.16, which might support her contention. Johnson’s argument continues with the assertion that “[t]he trial of a defendant is not a numbers or pictures game,” and that the court should so instruct the jury. To the extent that the court may nevertheless conclude that it is appropriate for the government to use the photographs of witnesses, Johnson contends that she should be afforded the same privilege. At the hearing on January 27, 2005, the court proposed that any potential prejudice could be reduced by having a court employee, rather than a government or defense representative, take the witnesses’ photographs and provide those photographs to both parties and jurors. The court asked the parties to consider the issue of whether or not a notebook of all of the witnesses’ photographs could be provided to the jury as a demonstrative exhibit and the further issue of whether that notebook (or a notebook for each juror) could be provided to the jurors during their deliberations. Although the government generally concurred in the court’s suggestion, Johnson registered some initial resistance to the idea of the jurors each receiving a notebook of witness photographs and to the idea of allowing jurors to have access to any such notebook or notebooks during their deliberations. Therefore, the court requested further briefing, initiated by the government, on these issues. On January 28, 2005, the government filed a supplemental memorandum in support of its request to use witnesses’ photographs during arguments. The government contends in its supplemental memorandum that the court has discretion to send “demonstrative” or “summary” exhibits to the jury during deliberations and that the photographs of witnesses are such demonstrative or summary exhibits, because they would aid the jury to understand and recall evidence already admitted, that is, the witnesses’ testimony. The government also asserts that if the photographs are taken and compiled by court personnel, there is little chance that notebooks of witnesses’ photographs will be taken as conveying any particular meaning to the jurors. Nevertheless, the government suggests a limiting instruction to advise the jurors that the photographs are provided to them only for the purpose of reminding them of the identity of the witnesses and their testimony, and explaining that a witness’s testimony, not his or her appearance, is the evidence that the jurors are to consider. Johnson did not take advantage of the opportunity to file a supplemental brief on this issue. 2. Analysis a. Latitude and discretion The government contends that its proposed use of the photographs of witnesses falls within the wide latitude parties should be afforded in making closing arguments. The government is correct that the district court “may properly grant counsel great latitude in making closing arguments.” United States v. Kindle, 925 F.2d 272, 278 (8th Cir.1991) (citing United States v. Felix, 867 F.2d 1068, 1075 (8th Cir.1989), and United States v. Lewis, 759 F.2d 1316, 1350 (8th Cir.1985)). On the other hand, the Eighth Circuit Court of Appeals “afford[s] district courts wide latitude in controlling closing arguments.” United States v. Warfield, 97 F.3d 1014, 1021 (8th Cir.1996) (citing United States v. McGuire, 45 F.3d 1177, 1189 (8th Cir.), cert. denied sub nom. Mandacina v. United States, 515 U.S. 1132, 115 S.Ct. 2558, 132 L.Ed.2d 811 (1995)). Thus, whatever latitude the government may have in closing arguments is limited by the court’s discretion to control the closing arguments. The government also contends that the photographs may be used during trial and sent to the jury, because they are either “summary” or “demonstrative” exhibits, even if they are not necessarily admissible. “[T]he trial judge is vested with discretion to determine whether exhibits shall be sent to the jury,” United States v. Lewis, 759 F.2d 1316, 1329 n. 6 (8th Cir.1985), although it is the “general rule [that] exhibits should not be sent to the jury room which have not been admitted.” United States v. Warner, 428 F.2d 730, 738 (8th Cir.1970). Thus, the court must determine whether or not the photographs of witnesses are “summary” or “demonstrative” exhibits, and if so, exercise its discretion to determine what use, if any, may be made of the photographs during the trial and deliberations. b. “Summary” exhibits The government argues that the photographs of witnesses are “summary” exhibits, because they would aid the jury to understand and recall evidence already admitted, that is, the witnesses’ testimony. Some time ago, in United States v. Lewis, 759 F.2d 1316 (8th Cir.1985), the Eighth Circuit Court of Appeals explained the nature of summary exhibits as follows: Summary exhibits are explicitly authorized by Fed.R.Evid. 1006; this Court has found them particularly useful to help triers of fact understand complex factual issues. Boston Securities, Inc. v. United Bonding Ins. Co., 441 F.2d 1302, 1303 (8th Cir.1971). The charts or summaries and any assumptions that they include must be based upon evidence in the record. United States v. Diez, 515 F.2d 892, 905 (5th Cir.1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d 641 (1976). Lewis, 759 F.2d at 1329 n. 6. Rule 1006, to which the court referred in Lems, in turn provides as follows: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. Fed. R. Evid. 1006. This court finds that the photographs of witnesses at issue here do not fit comfortably into the definition of “summary” exhibits in Rule 1006. The witnesses’ testimony, which the government contends the photographs merely “summarize,” does not consist of “voluminous writings, recordings, or photographs,” nor are the photographs of the witnesses the sort of “chart, summary, or calculation” that the rule appears to contemplate. Id. Thus, the court finds that Rule 1006, standing alone, is insufficient to support the use of photographs of witnesses during closing arguments or jury deliberations. c. “Demonstrative” exhibits Although the court is not convinced that the photographs of witnesses are “summary” exhibits, the court readily finds that such photographs are “demonstrative” exhibits intended and likely to assist the jury in remembering the names and testimony of the witnesses. Cf. United States v. De Peri, 778 F.2d 963, 979 (3d Cir.1985) (a chart was a “demonstrative aid” because it helped the jury “remember the names and positions of the defendants”). The Rules of Evidence are silent on the use and admissibility of “demonstrative” exhibits. Nevertheless, the Eighth Circuit Court of Appeals has explained that district courts have “virtually unfettered discretion to regulate the use of ... non-evidentiary devices, either generally or to achieve procedural fairness and regularity in a particular case.” United States v. Crockett, 49 F.3d 1357, 1362 (8th Cir.1995) (considering the use of transparencies to help jurors recall the testimony of witnesses). To structure that discretion, courts have used a balancing test, balancing probative value against potential prejudice, as Rule 403 provides, to determine whether “demonstrative” exhibits may be used at trial. United States v. Fauls, 65 F.3d 592, 596 (7th Cir.1995) (applying such a balancing test); United States v. Gaskell, 985 F.2d 1056, 1061 & n. 2 (11th Cir.1993) (same, also noting that “[sjeveral circuits have recognized that demonstrative exhibits tend to leave a particularly potent image in the jurors’ minds”) (citations omitted). Similarly, some time ago, the Tenth Circuit Court of Appeals used a balancing of probative value and potential for unfair prejudice to determine whether demonstrative exhibits could be used during deliberations, as well as during trial. The court reiterated its prior holdings “that it is within the discretion of the Trial Court, absent abuse working to the clear prejudice of the defendant, to permit the display of demonstrative or illustrative exhibits admitted in evidence both in the courtroom during trial and in the jury room during deliberations.” United States v. Downen, 496 F.2d 314, 320 (10th Cir.1974) (emphasis added) (citing Taylor v. Reo Motors, Inc., 275 F.2d 699 (10th Cir.1960); Ahern v. Webb, 268 F.2d 45 (10th Cir.1959); Millers’ National Insurance Company, Chicago, Illinois v. Wichita Flour Mills Company, 257 F.2d 93 (10th Cir.1958); Carlson v. United States, 187 F.2d 366 (10th Cir.1951)). The court then held “that the submission of papers, documents or articles, whether or not admitted in evidence, to the jury for vieiv during trial or jury deliberations, accompanied by careful cautionary instructions as to their use and limited significance, is within the discretion accorded the Trial Court in order that it may guide and assist the jury in understanding and judging the factual controversy.” Id. at 321 (emphasis added). In addition, if demonstrative exhibits are used at trial, courts have recognized the propriety of limiting instructions. Crockett, 49 F.3d at 1362 (the trial court’s limiting instructions regarding demonstrative transparencies helped “to cure any undue influence the transparencies might have had”); Downen, 496 F.2d at 321 (the use of demonstrative exhibits is within the discretion of the court when, inter alia, the exhibits are “accompanied by careful cautionary instructions as to their use and limited significance”). For example, courts may instruct that jurors should rely on their own recollections, not the demonstrative exhibit, see Crockett, 49 F.3d at 1362, and that such “demonstrative” exhibits are not “independent evidence,” but instead are no better than the evidence on which they are based. See, e.g., United States v. Bakke, 942 F.2d 977, 985-86 (6th Cir.1991) (approving the district court’s refusal to admit demonstrative exhibits into evidence and the district court’s limiting instruction on the use the jury could make of such exhibits). Because the court concludes that the photographs of the witnesses are “demonstrative” exhibits, the court must apply the balancing test explained above to determine what use, if any, may be made of the photographs during Johnson’s trial and jury deliberations. d. Use of the photographs here Balancing the “probative value” or “usefulness” of the photographs at issue here against their potential for unfair prejudice, see Fauls, 65 F.3d at 596; Gaskell, 985 F.2d at 1061; see also Downen, 496 F.2d at 321 (demonstrative exhibits are admissible in the court’s discretion “absent abuse working to the clear prejudice of the defendant”), the court finds that showing the jurors photographs of witnesses at the end of a trial that is likely to last three months or more and likely to involve well over one hundred witnesses would be an effective way to refresh the jurors’ memories as to the testimony of particular witnesses. Indeed, in addition to allowing the jurors to take notes, which the court will do, the photographs may be the only way to refresh jurors’ memories about testimony of particular witnesses. Thus, as to the one side of the scales in the court’s balancing process, use of photographs of witnesses is likely to be of substantial benefit to the jurors’ understanding of the case. Johnson, however, contends that she would be prejudiced by use of the photographs of witnesses by an improper suggestion that sheer numbers of witnesses should point the jury toward a particular result, specifically, a determination of guilt and imposition of the death penalty. Johnson is correct that determination of the truth of a matter is not merely “a numbers game.” As Justice Black explained more than half a century ago, Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures upon which to rely. The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not quantity. Triers of fact in our fact-finding tribunals are, with rare exceptions, free in the exercise of their honest judgment, to prefer the testimony of a single witness to that of many. Weiler v. United States, 323 U.S. 606, 608, 65 S.Ct. 548, 89 L.Ed. 495 (1945). Nevertheless, some courts have recognized that, while the strength of evidence “does not necessarily depend upon the number of witnesses who testify, ... the number is a legitimate consideration among other things, such as whether the single witness in opposition is an interested party.” See, e.g., Woodard v. Fanboy, L.L.C., 298 F.3d 1261, 1266 n. 6 (11th Cir.2002). Thus, there is some value to demonstrating the number of witnesses testifying as to certain matters as well as some potential for significant unfair prejudice in doing so. The court concludes that the potential for unfair prejudice of displaying all of the photographs continuously during what is likely to be a very lengthy closing argument (in Honken’s case, both the government’s and the defendant’s closing arguments were over three hours long) substantially outweighs the legitimate purposes for doing so. See Weiler, 323 U.S. at 608, 65 S.Ct. 548. This is so, because the impact of seeing the photographs of all of the witnesses in a single display is more substantial than the impact of recalling that there were numerous witnesses. Cf. Gaskell, 985 F.2d at 1061 n. 2 (noting that “[s]everal circuits have recognized that demonstrative exhibits tend to leave a particularly potent image in the jurors’ minds”) (citations omitted). Again owing to the potency of such a visual display, the court also finds that this potential for unfair prejudice could persist, even if the jury is properly instructed on the issue of the “number” of witnesses. Therefore, the court will not permit the government to display all of the witnesses’ photographs in a single display for any significant period of time — certainly not for the full duration of a closing argument. On the other hand, the court does not find the same sort of prejudice arising from a compilation of all of the witnesses’ photographs in a notebook. To be sure, the notebook’s increasing size will remind jurors of the number of witnesses, but the implication that a verdict should be reached on the basis of sheer numbers of witnesses is more remote than it would be from a panoramic display of the photographs of all of the witnesses. Moreover, the court finds that the potential for prejudice from such a compilation is likely to be considerably mitigated if the court itself is the source of the photographs and the notebook, and either party is free to use that notebook for demonstrative purposes — indeed, fairness dictates that both parties must have the same free access to a notebook provided by the court for demonstrative purposes. Crockett, 49 F.3d at 1362 (the court may “regulate the use of ... non-evidentiary devices ... to achieve procedural fairness and regularity in a particular case”). A limiting instruction regarding the proper use of the notebook would further mitigate any potential prejudice. Id. (the trial court’s limiting instructions regarding demonstrative transparencies helped “to cure any undue influence the transparencies might have had”); Bakke, 942 F.2d at 985-86 (the potential prejudice of “demonstrative” exhibits was mitigated by an instruction that such exhibits were not “independent evidence,” but instead were no better than the evidence on which they were based); Downen, 496 F.2d at 321 (the use of demonstrative exhibits is within the discretion of the court when, inter alia, the exhibits are “accompanied by careful cautionary instructions as to their use and limited significance”). Such an instruction would include a reminder that the testimony of the witnesses is evidence, but that the way witnesses appear in any photographs is not, cf. Bakke, 942 F.2d at 985-86 (noting that courts have recognized the propriety of instructing the jury that “demonstrative” exhibits are not “independent evidence,” and are no better than the evidence on which they are based and approving the district court’s limiting instruction to that effect); that the jurors should base their findings on their recollections of evidence, not on the appearance of witnesses in the photographs, cf. Crockett, 49 F.3d at 1362 (the trial court properly instructed jurors to base their findings on their recollection of the evidence, not on the transparencies showing the names and relationships of the defendants); and that a determination of the truth of a matter does not depend merely upon the number of witnesses testifying a certain way. See Weiler, 323 U.S. at 608, 65 S.Ct. 548. In contrast, Johnson has not articulated any potential for unfair prejudice that would outweigh the probative value of refreshing jurors’ memories about the testimony of a particular witness or group of related witnesses with photographs of those witnesses. The “numbers” argument does not apply to individual photographs and has less persuasiveness as to a group of photographs of related witnesses, and no other prejudice has been suggested. If any marginal prejudice could be asserted, the court again concludes that such prejudice would be sufficiently mitigated by the court, rather than a party, providing the witnesses’ photographs and also providing an instruction that the witnesses’ testimony, not their appearance or numbers, is the evidence before the jury. Finally, in the present ease, the court concludes that use of the photographs of witnesses as demonstrative exhibits is permissible during both the trial and the jury’s deliberations. Downen, 496 F.2d at 321. It is perhaps during deliberations that jurors would be most assisted in recalling the testimony of particular witnesses by having the opportunity to see photographs of those witnesses. At the same time, the measures the court has described to mitigate any potential prejudice would not lose their efficacy just because the jurors are out of the court’s and the parties’ sight. Therefore, the government’s December 29, 2004, Motion For Use Of Witness Photographs During Arguments (docket no. 259) will be granted on the following conditions: (1) A court employee will take a photograph of each witness, as the witness appeared while testifying, either before the witness’s testimony has begun (as part of the “swearing in” process) or after the witness’s testimony has concluded (as part of the process of dismissing the witness); (2) the photographs will be printed and compiled in a notebook; (3) either party may use the photographs of witnesses in the course of closing arguments, in the “merits phase” and/or the “penalty phase,” if any, to refresh jurors’ memories about the testimony of any witness or group of related witnesses; (4) no party will be permitted to display more than one witness’s photograph at any given time, unless that party has previously requested permission of the court to display simultaneously the photographs of a group of witnesses who testified on related matters and has shown the proposed display to opposing counsel; (5) no party may display all of the witnesses’ photographs in a single display without prior permission of the court and may only present such a display for a limited period of time, not for the full duration of a closing argument, although the length of time will be determined during a conference before closing arguments, when the court and the parties will be in a better position to estimate the duration of the arguments; and (6) unless a sufficient contrary showing is made upon the conclusion of all evidence in the “merits phase” of the trial, the notebook will be sent to the jury for the jury’s use during deliberations. C. The Government’s Motion To Determine Admissibility Of Audio Recordings Next, the court turns to the government’s December 29, 2004, Motion For Pretrial Ruling Regarding Admissibility Of Audio Recordings (docket no. 260), which also reprises an issue that arose in Honk-en’s case. This motion, pursuant to Rule 104(c) of the Federal Rules of Evidence, seeks a ruling on the admissibility during the “merits phase” or “penalty phase” of this trial of separate audiotape recordings of meetings between Dustin Honken and two men, Greg Nicholson (one of the murder victims) and Timothy Cutkomp (a sometime co-conspirator), as well as audiotape and videotape recordings of conversations between Angela Johnson, Dwayne White (a cooperating witness), and Special Agent Michael Mittan. Johnson resisted the motion on January 7, 2005 (docket no. 271). 1. Factual background The recording of the conversation between Honken and Nicholson was made after Nicholson agreed to cooperate with law enforcement officers in their investigation of Nicholson’s and Honken’s drug-trafficking activities in 1993. The recording is of an incident on March 21, 1993, in which Nicholson delivered $3,000 in cash supplied by law enforcement officers to Honken, purportedly in payment for drugs. The conversation also includes a discussion of the possibility of Nicholson obtaining a kilogram of methamphetamine from Honken. Honken was arrested shortly after this conversation. The 1993 charges against Honken were dropped, largely because of the disappearance of the witnesses Honken has been convicted of killing and Johnson is charged with killing. Honken and Cutkomp were arrested on new charges in 1996. While on pretrial release, Cutkomp agreed to cooperate with law enforcement officers and entered into a plea agreement indicating that he would do so. In May and June of 1996, Cutkomp met Honken while wearing a recording device and recorded his conversations with Honken. The government has enhanced the recordings made by Nicholson and Cutkomp to reduce background noise and to make the recorded conversations more audible. However, the original tapes and enhanced tapes sent back to law enforcement officers in Iowa were inadvertently disposed of by a janitor and could not be found, despite an extensive search through the trash dump. The enhancement laboratory in Houston, Texas, had kept copies of the enhanced recordings as well as photographs of the original tapes. The government seeks leave to admit the enhanced copies at Johnson’s trial. The other recordings in question are audiotape and videotape recordings made in 1997 and 1998 of Angela Johnson’s conversations with a cooperating witness and a law enforcement officer. The recordings consist of 14 conversations between Johnson and cooperating witness Dwayne White and Special Agent Mike Mittan of the Iowa Division of Narcotics Enforcement. Two the meetings were also videotaped. Two of the audiorecordings were enhanced because of excessive background noise. The government asserts that it will present the testimony of one or more participants in each of the recorded conversations to the effect that the recordings accurately reflect the content of the conversations those participants had with either Honken or Johnson. The government also intends to play the recordings and to accompany them with transcripts. 2. Arguments of the parties In support of this motion, the government argues that the recordings are admissible under the standards set forth in United States v. McMillan, 508 F.2d 101, 104 (8th Cir.1974). More specifically, the government argues that the devices used were capable of recording the conversations, not least because the recordings of the conversations plainly exist; the operators of the recording devices were competent, again largely because the recordings do, in fact, exist, and the operators will testify that they knew how to operate the equipment; the recordings are authentic and correct, because participants in the conversations will verify their accuracy; no changes, additions, or deletions have been made to the recordings, because officers will so testify, even though the recordings have been “enhanced” to make the conversations more audible; the recordings have been properly preserved, because there is no evidence to the contrary, and even the loss of some of the original recordings does not mean this requirement has not been satisfied, where enhanced copies of demonstrated authenticity are offered instead, and there is no evidence of bad faith in the loss of the originals; the speakers are identified, either by the government agents involved or by acquaintances of the speakers who recognize the voices; and the conversations were recorded in good faith, without inducement to Honken or Johnson, who were merely given the opportunity to speak or respond. The government also contends that the recordings of Nicholson’s and Cutkomp’s conversations with Honken are admissible as co-conspirator statements. Johnson resists admission of the recordings in question, again in a resistance all but devoid of citation of any supporting authority. The essence of her resistance, reiterated at the hearing, is that the foundational and evidentiary issues are not so clear that the court can resolve them pretrial. She acknowledges that there may not be any issue with regard to enhancement of certain recordings, as long as the jury is told that it is hearing enhanced recordings. However, she contends that, if it becomes apparent that the recordings have been enhanced to the degree that the jury is not hearing a recording that fairly and accurately portrays the surrounding noises that the participants in the recorded conversations would have been hearing, then she may object on the ground that the enhanced tapes inaccurately portray the audibility of the participants’ statements to each other at the time of the recordings. She also expresses her “doubts” that “enhancements” rather than “duplicates” can be admitted as “copies” of the originals, where the original tapes no longer exist. Assuming that foundational objections can be overcome at trial, Johnson argues, that the recordings of conversations in which she was not a party would still be inadmissible hearsay, because they do not satisfy any applicable hearsay exception or the requirements of the confrontation clause. She also argues that much of the recorded material is either not relevant or should be excluded pursuant to Rule 403 on the ground that any marginal relevance is outweighed by the potential for unfair prejudice, although she does not articulate what unfair prejudice would be at issue. Instead, she argues that the government’s failure to provide the court with the tapes and transcripts means that the court cannot assess the admissibility of the recordings pretrial. Finally, Johnson argues that the recordings of conversations in which she participated are not relevant to any pending charges, but to the extent that they might be, they would tend to confuse the jury and are unfairly prejudicial, although she again fails to explain either the nature of the confusion or the potential for prejudice. She reiterates that, where the court does not have the recordings to review, the court cannot adequately determine the admissibility of the recordings. 3. Analysis As the Eighth Circuit Court of Appeals recently reiterated, “The requirements for admitting tape-recorded information into evidence were set forth in United States v. McMillan, 508 F.2d 101, 103 (8th Cir.1974).” United States v. Wells, 347 F.3d 280, 288 (8th Cir.2003). In McMillan the Eighth Circuit Court of Appeals held as follows: There must be a proper foundation for the introduction of the [recordings]. Those requirements include a showing: (1) That the recording device was capable of taking the conversation now offered in evidence; (2) That the operator of the device was competent to operate the device; (3) That the recording is authentic and correct; (4) That changes, additions or deletions have not been m