Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING GOVERNMENT’S PRE-TRIAL MOTIONS BENNETT, Chief District Judge. TABLE OF CONTENTS I. INTRODUCTION.933 A. Background.933 1. The 1993 case.933 2. The 1996 case.933 B. Procedural Background To The Present Case.934 1. Indictments in the present case.934 2. Pre-trial motions .937 II. LEGAL ANALYSIS.938 A. Defendant’s Admissions.938 1. Arguments of the parties .938 2. Analysis .940 a. Res gestae.940 b. Admission of party opponent.942 c. Judicial estoppel.943 d. Relevance, prejudice, cumulativeness, and “other crimes”.945 e. Overbreadth.946 3. Summary .946 B. Admissibility Of Maps.946 1. Additional factual background.947 2. Arguments of the parties .947 a. Initial arguments.947 b. Supplemental arguments .949 3. Analysis .950 a. Procedural default.950 b. Crawford v. Washington.951 i. Facts and issue .951 ii. The meaning of the Confrontation Clause.951 Hi. Failings of Roberts v. Ohio.951 iv. Replacing Roberts with a bright-line rule.953 c. The effect of Crawford.954 i. The meaning of “testimonial. ”.954 ii. Are the maps “testimonial”? .956 d. The applicable analysis.957 i. Co-conspirator statements.958 ii. Statements against penal interest.961 C. Admissibility Of Audio Recordings.963 D. Admissibility Of Replica Firearm.964 1. The motion and the defendant’s procedural default.964 2. Additional factual background.965 3. Arguments of the parties .965 4. Analysis .965 a. Applicable law.965 b. Application of the law.968 III. CONCLUSION. .969 In this death penalty case, involving the alleged murder of five witnesses to the defendant’s drug-trafficking or other alleged criminal conduct, the government has filed a series of pre-trial motions on the admissibility of various kinds of evidence. The evidence in question consists of the defendant’s admissions during his guilty plea, sentencing, and conviction of drug charges in 1997-98; certain maps made by an alleged co-conspirator showing where the alleged murder victims were buried; certain audio recordings of meetings between the defendant and two cooperating witnesses; and a replica firearm of the type allegedly used and carried by the defendant. The defendant resists admission of at least some of this evidence. I.INTRODUCTION A. Background 1. The 1993 case The background to the government’s pre-trial motions in this case begins with a survey of the prior prosecutions of defendant Dustin Lee Honken in this judicial district. Honken was first prosecuted for drug-trafficking offenses in this district in 1993 in Case No. CR 93-3019 (“the 1993 case”). As the Eighth Circuit Court of Appeals explained, In April 1993, a grand jury in the Northern District of Iowa indicted ap-pellee for conspiracy to distribute methamphetamine. After the disappearance of one or more prospective prosecution witnesses, the government dismissed the indictment. United States v. Honken, 184 F.3d 961, 963 (8th Cir.), cert. denied, 528 U.S. 1056, 120 S.Ct. 602, 145 L.Ed.2d 500 (1999). Thus, the first prosecution of Honken in this district did not lead to a conviction. 2. The 1996 case Honken was again indicted on drug-trafficking charges on April 11,1996, this time with co-defendant Timothy Cutkomp, in Case No. CR 96-3004-MWB (“the 1996 case”). Count 1 of the Indictment in the 1996 case charged Honken and Cutkomp with conspiracy, between about 1993 and February 7, 1996, to distribute, manufacture, and attempt to manufacture 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 100 grams or more of pure methamphetamine. Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Count 2 of the original Indictment in the 1996 case charged Honken with possessing and aiding and abetting the possession of listed chemicals, in violation of 21 U.S.C. § 841(d) and 18 U.S.C. § 2, and Count 3 charged possession and aiding and abetting the possession of drug paraphernalia intending to use such paraphernalia to manufacture and attempt to manufacture methamphetamine and listed chemicals, in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2, respectively. Id., Counts 2 & 3.A superseding indictment filed later in the 1996 case restated the first three charges and added a fourth charge of attempting to manufacture methamphetamine. See Superseding Indictment in Case No. CR 96-3004-MWB (N.D.Iowa). Eventually, in 1997, Honken pleaded guilty to the conspiracy charge and the charge of attempting to manufacture methamphetamine, i.e., Counts 1 and 4, and the government dismissed Counts 2 and 3. See, e.g., Honken, 184 F.3d at 963. The court held an episodic sentencing hearing on December 15 and 16, 1997, and February 17, 18, and 24, 1998. Honken testified under oath on February 18 and 24, 1998. After the government’s appeal of the sentence originally imposed by the undersigned, see id., Honken was resen-tenced on January 25, 2000. Honken then unsuccessfully appealed his sentence, see United States v. Honken, 2 Fed.Appx. 611 (8th Cir.2001). Honken is now serving his sentence on Counts 1 and 4 in the 1996 case. B. Procedural Background To The Present Case 1. Indictments in the present case The present prosecution began with the filing of a seventeen-count indictment against Honken on August 30, 2001, which brought a variety of charges arising from Honken’s alleged murder and solicitation of murder of witnesses to his alleged drug-trafficking and other criminal activity, which had, for example, allegedly brought the 1993 prosecution to its abrupt conclusion and had been intended to impede prosecution of the 1996 case. On August 23, 2002, a Superseding Indictment was handed down in this case, amending Counts 8 through 17. See Superseding Indictment (docket no. 46). The court will examine the charges in this case in more detail as a prelude to a discussion of the admissibility of certain evidence at trial of those charges. Counts 1 through 5 of the Superseding Indictment charge “witness tampering.” More specifically, each count alleges that Honken “did willfully, deliberately, maliciously, and with premeditation and malice aforethought, unlawfully kill” one of five witnesses: Gregory Nicholson, Lori Duncan (Nicholson’s girlfriend), Amber Duncan and Kandi Duncan (Lori Duncan’s daughters, ages 6 and 10), and Terry De-Geus. Count 1 alleges that Gregory Nicholson was murdered 1) with the intent to prevent Gregory Nicholson from attending or providing testimony at an official proceeding in the Northern District of Iowa, Case Nos. 93-20 M and CR 93-3019 [the 1993 case]; 2) with intent to prevent Gregory Nicholson from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, including: the distribution of methamphetamine, the manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846; and 3) with intent to retaliate against Gregory Nicholson for providing information to law enforcement relating to the commission or possible commission of federal offenses, including: the distribution of methamphetamine, the manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846[;] and 4) with intent to retaliate against Gregory Nicholson for testifying before the Federal Grand Jury investigating the drug trafficking activities of DUSTIN LEE HONKEN and others, which killing is a first degree murder as defined by Title 18, United States Code, Section mi. This is in violation of Title 18, United States Code, Sections 1512(a)(1)(A) & (C); 1513(a)(1)(A) & (B) and 1111. Superseding Indictment, Count 1. Counts 2, 3, and 4 allege that Lori Duncan, Kandi Duncan, and Amber Duncan, respectively, were murdered with the intent to prevent [them] from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, that is: the tampering with Gregory Nicholson, a federal witness, in violation of Title 18, United States Code, Section 1512; and DUSTIN LEE HONKEN’s unlawful contact with Gregory Nicholson, in contempt of court and in violation of DUSTIN LEE HONKEN’s conditions of federal pretrial release in Case Nos. 93-20 M and CR 93-3019 [the 1993 case], in violation of Title 18, United States Code, Sections 3148 and 401, which killing of [each witness] is a first degree murder, as defined by Title 18, United States Code, Section 1111. This is in violation of Title 18, United States Code, Sections 1512(a)(1)(C), 1512(a)(2)(A), and 1111. Superseding Indictment, Counts 2-4. Count 5 alleges that Terry DeGeus was murdered with intent to prevent Terry DeGeus from communicating to a law enforcement officer of the United States, information relating to the commission or possible commission of federal offenses, that is: the distribution of methamphetamine, manufacture of methamphetamine and conspiracy to distribute and manufacture methamphetamine, a Schedule II Controlled Substance, in violation of Title 21 United States Code, Sections 841 and 846, which killing of Terry DeGeus is a first degree murder, as defined by Title 18, United States Code, Section 1111. This is in violation of Title 18, United States Code, Sections 1512(a)(1)(C), 1512(a)(2)(A), and 1111. Superseding Indictment, Count 5. The Superseding Indictment includes, in support of Counts 1 through 5, allegations of “Findings under 18 U.S.C. § 3591 and 3592,” which the court finds it unnecessary to repeat here, because the government is not seeking the death penalty against Honken on the “witness tampering” charges. Count 6 charges Honken with soliciting the murder of witnesses, as follows: Between about June 10, 1996, and February 24, 1998, in the Northern District of Iowa and elsewhere, DUSTIN LEE HONKEN did solicit, command, induce, and endeavor to persuade Dean Donaldson and Anthony Altimus to engage in conduct constituting a felony that has as an element, the use, attempted use, and threatened use of physical force against the person of another in violation of the laws of the United States, that is: 1) the murder of Timothy Cutkomp, with the intent to prevent Timothy Cutkomp’s attendance or testimony at a federal drug trial in the Northern District of Iowa, Case No. CR 96-3004 [the 1996 case], in violation of Title 18, United States Code, Sections 1512 and 1111; and 2) the murder of Daniel Cobeen with the intent to prevent Daniel Cobeen from attending or testifying at a federal drug trial in the Northern District of Iowa, Case No. CR 96-3004 [the 1996 case], in violation of Title 18, United States Code, Section 1512 and 1111, with the intent that Dean Donaldson and Anthony Altimus engage in such conduct and under circumstances strongly corroborative of that intent. This is in violation of Title 18, United States Code, Section 373(a)(1). Superseding Indictment, Count 6. Count 7 charges Honken with conspiracy to tamper with witnesses and to solicit the murder of witnesses, as follows: Between about July 1, 1993, and continuing thereafter, until about 2000, in the Northern District of Iowa and elsewhere, DUSTIN LEE HONKEN did knowingly and willfully combine, conspire, confederate, and agree with other persons known and unknown to the grand jury, to commit the following offenses against the United States: 1. To kill or attempt to kill another person with the intent to prevent the attendance or testimony of that person at an official proceeding, in violation of Title 18, United States Code, Section 1512(a)(1)(A); 2. To kill or attempt to kill another person with the intent to prevent communication by a person to a law enforcement officer of information relating to the commission or possible commission of a federal offense or violations of conditions of release pending judicial proceedings, in violation of Title 18, United States Code, Section 1512(a)(1)(C); 3. To knowingly use intimidation, physical force, threats, or otherwise corruptly to persuade another person with the intent to influence, delay, or prevent testimony of a person at an official proceeding, in violation of Title 18, United States Code, Section 1512(b)(1); 4. To knowingly use intimidation, physical force, threats, or otherwise corruptly persuade another person with the intent to hinder, delay, or prevent communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense or a violation of conditions of release pending judicial proceedings, in violation of Title 18, United States Code, Section 1512(b)(3); and 5. To solicit, command, induce, and endeavor to persuade a person to commit a felony that has as an element the use, attempted use or threatened use of physical force against the person or property of another, specifically violations of 18 U.S.C. § 1512(a)(1)(A) & (C) (murder and attempted murder of individuals with intent to prevent them from testifying or communicating information to law enforcement officials) and 1512(b)(1) & (3) (knowingly using, or attempting to use, intimidation, force, threats or corrupt persuasion of an individual with intent to prevent them from testifying or communicating information to law enforcement officials) with the intent that such person engage in such conduct and under circumstances strongly corroborative of that intent, in violation of Title 18, United States Code, Section 373. Superseding Indictment, Count 7. Count 7 includes fourteen numbered paragraphs of allegations of “Background to Overt Acts” and thirty numbered paragraphs of allegations of “Overt Acts” in furtherance of the conspiracy, which the court will not quote here. Honken is also charged in Counts 8 through 12 of the Superseding Indictment in this case with five counts of murder 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. As they presently stand, each of these Counts charges the “conspiracy murder” of one of five people — Gregory Nicholson, Lori Duncan, Amber Duncan, Kandi Duncan, and Terry DeGeus, respectively — as follows: On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONK-EN, while knowingly engaging in an offense punishable under Title 21, United States Code, Sections 846 and 841(b)(1)(A), that is between 1992 and 1998 DUSTIN LEE HONKEN did knowingly and unlawfully conspired [sic] to: 1) manufacture 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine and 2) distribute 100 grams or more of pure methamphetamine and 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine, intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted. All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2. Superseding Indictment, Counts 8 through 12. Counts 13 through 17 of the Superseding Indictment in this case charge Honken with the murder of the same five individuals, respectively, while engaging in or working 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. Those charges are as follows: On or about July 25, 1993 [November 5, 1993, as to DeGeus], in the Northern District of Iowa, DUSTIN LEE HONK-EN, while engaging in and working in furtherance of a continuing criminal enterprise in violation of Title 21, United States Code, Section 848(c), intentionally killed and counseled, commanded, induced, procured, and caused and aided and abetted the intentional killing of [the named individual], and such killing resulted. The continuing criminal enterprise DUSTIN LEE HONKEN engaged in and worked in furtherance of was undertaken by DUSTIN LEE HONKEN in concert with five or more other persons including, but not limited to, Timothy Cutkomp, Gregory Nicholson, Terry De-Geus, Angela Jane Johnson, and Jeffery Honken. In the organization, DUSTIN LEE HONKEN occupied a position of organizer, supervisor or other position of management. The criminal enterprise involved the commission of a continuing series of narcotics violations under Title 21, United States Code, Section 801 et. [sic] seq. occurring between 1992 and 2000, specifically: [18 numbered paragraphs omitted]. From this continuing criminal enterprise, DUSTIN HONKEN and others derived substantial income and resources. All in violation of Title 21, United States Code, Section 848(e)(1)(A) and Title 18, United States Code, Section 2. Superseding Indictment, Counts 13 through 17. On June 10, 2003, the government filed its Notice Of Intent To Seek The Death Penalty Under 21 U.S.C. § 848 (docket no. 120), thereby giving notice of the government’s intent to seek the death penalty on the “conspiracy murder” and “CCE murder” offenses in Counts 8 through 17. On July 21, 2003, this court denied Honken’s motion to dismiss Counts 8 through 17 on the basis of “former jeopardy” in light of his prior conviction in the 1996 case. See United States v. Honken, 271 F.Supp.2d 1097 (N.D.Iowa 2003). Therefore, all of the charges in the Superseding Indictment are currently set for trial beginning on August 16, 2004. 2. Pre-trial motions In anticipation of evidentiary disputes at trial, the government has filed the following pre-trial motions: (1) its December 29, 2003, Request For Hearing, Pursuant To Rule 104(c) Of The Federal Rules of Evidence, Regarding Defendant’s Admissions During His Guilty Plea, Sentencing, And Conviction Of Drug Charges In 1997-98 (docket no. 180); (2) its January 5, 2004, Request For Hearing And Pretrial Ruling Regarding Admissibility Of Maps Made By Co-Conspirator Johnson (docket no. 183), which was renewed on February 17, 2004 (docket no. 212); (3) its February 20, 2004, Request For Hearing And Pretrial Ruling Regarding Admissibility Of Audio Recordings (docket no. 213); and (4) its April 26, 2004, Rule 104(c) Motion For Admission Of A Replica Firearm (docket no. 238). Honken eventually resisted some of the government’s pre-trial motions. By order dated May 19, 2004 (docket no. 252), the court directed the government to file and serve, on or before May 26, 2004, a statement delineating the following: (1) the count or counts of the indictment on which the government asserts that each category of evidence addressed in its pretrial motions would be admissible; and (2) if any evidence is only admissible as to some counts, but not others, the need for and content of an appropriate limiting instruction, including a suggestion for the manner and frequency with which such limiting instructions shall be given in the course of trial. The defendant was directed to file a response to the government’s statement on or before May 28, 2004. The government filed the required statement on May 25, 2004 (docket no. 258). After an extension of time to do so, Honken responded to the government’s statement on June 1, 2004 (docket no. 266). The government requested hearings on three of the motions addressed in this ruling and the court originally set oral arguments on those motions. After rescheduling, the oral arguments were ultimately set for July 1, 2004. However, after due consideration of the parties’ submissions and the record in this case, the court finds that oral arguments are not necessary to the court’s disposition of the motions. Moreover, the court finds that the July 1, 2004, hearing date is better reserved for other pre-trial motions that have either been filed more recently or that are due to be filed by June 18, 2004. Therefore, the court considers the government’s pre-trial motions fully submitted. The court will consider those motions in turn. II. LEGAL ANALYSIS A. Defendant’s Admissions The government’s first motion is its December 29, 2003, Request For Hearing, Pursuant To Rule 104(c) Of The Federal Rules of Evidence, Regarding Defendant’s Admissions During His Guilty Plea, Sentencing, And Conviction Of Drug Charges In 1997-98 (docket no. 180), which seeks a ruling on the admissibility of evidence of Honken’s admissions in the 1996 case. More specifically, the government seeks a ruling on the admissibility of the following evidence: (1) certified copies of the judgment in 1998, which was corrected in 2000; (2) a certified transcript of Honken’s admissions made during his guilty plea on June 2, 1997; and (3) a certified transcript of his admissions made during his sentencing hearing on February 18, 1998. Honk-en filed his resistance to admission of this evidence on January 16, 2004 (docket no. 194), and the government filed a reply on January 26, 2004 (docket no. 198). 1. Arguments of the parties The government cites two grounds for admissibility of this evidence: (1) the evidence is direct proof of the conduct charged in this case; and (2) Honken’s prior testimony is not hearsay, because it constitutes admissions by a party opponent. As to the first ground for admissibility, the government contends that the doctrine of res gestae provides that evidence of a prior crime can be admitted when the prior crime is so blended or connected with the charged crime that proof of one incidentally involves the other, or evidence of the prior crime explains the circumstances of the charged crime, or that evidence tends logically to prove any element of the charged crime. In this case, the government contends that Honk-en’s prior convictions for conspiracy to distribute methamphetamine and attempting to manufacture methamphetamine constitute substantive evidence of the “continuing series of drug offenses” element of the charged “conspiracy murder” and “CCE murder” offenses; tend to prove the “intent” element of the present offenses, by demonstrating motives for the murders; and demonstrate the relationship between Honken, Angela Johnson, other conspirators, and the murder victims. As to the second ground for admissibility, the government contends that Honken’s statements in his change-of-plea hearing and sentencing hearing are not hearsay, because they are admissions of a party opponent under Rule 801(d)(2)(A) of the Federal Rules of Evidence. Such statements are admissible, the government contends, even if, standing alone, they establish one of the elements of the charged crime. In response, Honken contends that the fact that the evidence in question is not barred by the hearsay rule does not mean that it is necessarily admissible; rather, Honken contends that the evidence is inadmissible under Rule 402 of the Federal Rules of Evidence, because it is irrelevant, and under Rule 403, because it is unduly prejudicial, cumulative, or both. Moreover, Honken contends that if the evidence in question is potentially admissible, the government should be required to pinpoint the specific portions of the transcripts that the government seeks to admit. More specifically, as to his first ground for exclusion of the evidence, Honken contends that the evidence of his prior conviction for conspiracy is not relevant, because the government previously argued — in a successful effort to defeat Honken’s “former jeopardy” motion- — that the conspiracy charged in the 1996 case is not “the same” conspiracy that is charged in the “conspiracy murder” and “CCE murder” charges in the present case. Honken contends that the government’s argument that the prior conviction proves elements of the charged crimes, when the government previously asserted that the charges in the 1996 case and the present case are completely distinct, is not only disingenuous, but is barred by the doctrine of judicial estoppel. Judicial estoppel applies here, Honken argues, because the government’s arguments about'the relationship between the prior crimes and the charged crimes are clearly inconsistent, the court adopted the government’s position in its ruling on Honken’s “former jeopardy” motion, and allowing the government to maintain its inconsistent position now would allow the government to derive an unfair advantage. Honken also contends that the inconsistency in the government’s arguments demonstrates the irrelevance of the prior convictions. Next Honken argues that the evidence is unduly prejudicial and cumulative. Honken contends that the prejudice derives from the possibility that the jury will convict him on the basis that he is a “bad person,” not on the basis of evidence related to the charged crimes. If the prior convictions really are for a distinct offense, Honken contends, then the probative value of the evidence of those prior convictions is minimal, while the potential for prejudice is very high. Even if the evidence is somehow relevant and not prejudicial, Honken argues that the evidence admitted should be limited to minimize both the unfair prejudice and cumulativeness of the evidence. For example, Honken contends that the parties could limit the amount of evidence necessary by stipulating to the prior convictions and allowing only the introduction of the certified copies of the judgments. Finally, Honken contends that the government’s request is too broad, because there are 146 pages of transcript from Honken’s testimony at his sentencing hearing on February 18, 1998. Honken contends that the government should be required to identify the precise portions of the transcript that it seeks to admit. In reply, the government contends that Honken has failed to distinguish between a legal argument about the elements of the offenses and an evidentiary argument about the relevance of the prior criminal conduct. The government asserts that it previously argued, and the court found, that there was considerable overlap in the conduct leading to the prior and present charges, but that the offenses nevertheless were not legally “the same.” Specifically, the government points out that the court noted that the present conspiracy and CCE are considerably expanded in scope of activity and conspirators, and possibly in locations, as compared to the prior conspiracy, and the charged crimes involve murders, so that, even if the government argued that the crimes were not legally “the same,” the government never asserted that the crimes were factually distinct. Instead, the government argues that the prior conspiracy is part of the continuing course of conduct alleged in the charged crimes. Thus, the government asserts, Honken’s admissions about his prior drug-trafficking are plainly relevant to the present crimes. Nor is the evidence of prior convictions unfairly prejudicial or cumulative, the government contends, because the evidence tends to prove elements of the charged crimes and is different in nature and impact from evidence of a stipulation to prior convictions. Finally, the government contends that its request for a determination of admissibility is not overbroad, because the jury should have the full context of Honken’s admissions to understand and evaluate the evidence. In the government’s statement identifying the specific counts on which this evidence would be admissible, the government contends that this evidence is directly admissible as to all counts of the indictment, because it explains the underlying reasons for or circumstances of criminal conduct charged in all counts. In the alternative, the government argues that the evidence is admissible on all counts pursuant to Rule 404(b) of the Federal Rules of Evidence, because it shows Honken’s motive, opportunity, intent, preparation, plan, or state of mind for each charged offense. Honken, on the other hand, contends that, if the evidence is admissible at all, it is only admissible on counts of the indictment requiring proof of a conspiracy to distribute controlled substances and possibly for impeachment purposes. 2. Analysis a. Res gestae As the Eighth Circuit Court of Appeals has explained, “Under the theory of res gestae, evidence of [a] prior crim[e] can be admitted when the prior crime is ‘so blended or connected, with the one[s] on trial as that proof of one incidentally involves the other[s]; or explains the circumstances thereof; or tends logically to prove any element of the crime[s] charged.’ ” United States v. Riebold, 135 F.3d 1226, 1229 (8th Cir.) (en banc) (quoting United States v. Forcelle, 86 F.3d 838, 841 (8th Cir.1996)), cert. denied, 524 U.S. 944, 118 S.Ct. 2356, 141 L.Ed.2d 725 (1998); accord United States v. Holliman, 291 F.3d 498, 502 (8th Cir.2002) (“The evidence of other vehicles stolen by the conspiracy was admissible under the doctrine of res gestae, as this evidence was sufficiently connected to the charged crimes that it tended logically to prove elements of these crimes.”) (citing Riebold), cert. denied, 537 U.S. 1137, 123 S.Ct. 927, 154 L.Ed.2d 831 (2003); United States v. Roberts, 253 F.3d 1131, 1134-35 (8th Cir.2001) (holding that the res gestae doctrine is not limited to evidence or prior crimes that prove an element of a charged offense, but also encompasses prior crimes that demonstrate the relationship of the defendants in relation to the charged crime, citing Riebold and Moore, infra); United States v. Jefferson, 215 F.3d 820, 824 (8th Cir.) (citing Riebold for a statement of the doctrine), cert. denied, 531 U.S. 911, 121 S.Ct. 261, 148 L.Ed.2d 189 (2000); Moore v. United States, 178 F.3d 994, 1000 (8th Cir.) (evidence of a prior crime does not have to establish an element of a charged offense to be admissible under the res gestae doctrine, if it explains the context of the charged crime, and thus “tends logically to prove any element of the crime charged”), cert, denied, 528 U.S. 943, 120 S.Ct. 356, 145 L.Ed.2d 278 (1999); Forcelle, 86 F.3d at 841-42 (recognizing that “evidence of other crimes is admissible for the purpose of providing the context in which the [charged] crime occurred,” and is thus “res gestae ” or “intrinsic” evidence, but holding that the evidence of another crime was not admissible in that case, because it did not “complete the story of the charged crimes” and “provide[d] no additional context for the crimes charged,” but was only a discrete example of the defendant’s wrongdoing). Evidence that falls within the res gestae doctrine is not governed by Rule 404(b) of the Federal Rules of Evidence concerning prior crimes or “bad acts.” Roberts, 253 F.3d at 1135; Moore, 178 F.3d at 1000; Riebold, 135 F.3d at 1229. Here, the evidence of the crimes in thé 1996 case, and the accompanying evidence of Honken’s testimony at his sentencing, is admissible under each of the prongs of the res gestae doctrine as to each of the crimes charged in the present indictment. First, the evidence of Honken’s crimes in the 1996 case is “so blended or connected, with the one[s] on trial as that proof of one incidentally involves the other[s]” Riebold, 135 F.3d at 1229 (internal quotation marks omitted). Indeed, this court noted the extensive “overlap” between the crimes charged in the 1996 ease and the “conspiracy murder” and “CCE murder” crimes charged in Counts 8 through 17 of the present case in its ruling on Honken’s motion to dismiss on “former jeopardy” grounds, but the court concluded that the “conspiracy murder” and “CCE murder” offenses involve an expanded time frame, both earlier and later than the conspiracy charged in 1996, more and some different conspirators, and an expanded scope of activity. Honken, 271 F.Supp.2d at 1115. Second, the court finds that' the prior crimes explain the circumstances of the offenses charged in all of the counts of the present indictment. Riebold, 135 F.3d at 1229. As the government contends, the evidence of the 1996 convictions and the evidence of Honken’s testimony during his sentencing demonstrate the relationship between Honken, Angela Johnson, other conspirators, and the murder victims. Specifically, Honken’s testimony at his sentencing includes- numerous admissions concerning his dealings with -alleged murder victims Greg Nicholson and Terry De-Geus, former associates and alleged murder targets Daniel Cobeen and Timothy Cutkomp, and the persons Honken allegedly solicited to murder Mr. Cobeen and Mr. Cutkomp, who are identified in the indictment as Dean Donaldson and Anthony Altimus, thus establishing the context of and potential motives for the offenses charged in Counts 1 through 17 of the present indictment. Third, this evidence “tends logically to prove ... elements] of the crime[s] charged.” Riebold, 135 F.3d at 1229 (internal quotation marks omitted). Again, the court agrees with the government that the crimes in the 1996 case, and Honken’s testimony about them at his sentencing, tend to prove, at a minimum, the agreement to commit drug-trafficking offenses element of the “conspiracy murder” offenses in Counts 8 through 12, the “continuing series of drug offenses” element of the “CCE murder” offenses charged in Counts 13 through 17, and the “intent” element of the offenses charged in all of the counts, by demonstrating motives for the murders that allegedly actually occurred or were solicited to conceal Honk-en’s drug-trafficking or other criminal activities. Thus, in the absence of any other bar, the evidence of Honken’s 1996 convictions and his admissions at sentencing concerning those crimes is admissible under the res gestae doctrine as to all of the present charges. Indeed, it does not appear that Honken has ever asserted that the res gestae doctrine is not applicable, but has focused, instead, on other bars to the admissibility of the evidence, which the court will discuss below. b. Admission of party opponent The government’s alternative contention for the admissibility of Honken’s guilty plea, judgment of conviction, and testimony at his change-of-plea hearing and sentencing is that the evidence constitutes admissions of a party opponent pursuant to Rule 801(d)(2)(A) of the Federal Rules of Evidence. The court agrees. The Eighth Circuit Court of Appeals has reiterated that “ ‘[a] guilty plea is admissible in a subsequent collateral criminal trial as evidence of an admission by a party opponent.’ ” United States v. Williams, 104 F.3d 213, 216 (8th Cir.1997) (quoting United States v. Holmes, 794 F.2d 345, 349 (8th Cir.1986)). Thus, the guilty plea itself is certainly admissible. Similarly, a defendant’s sworn testimony in a prior change-of-plea or sentencing hearing fits within the definition of an admission under Rule 801(d)(2)(A) of the Federal Rules of Evidence, because it is the defendant’s “own statement.” See Fed. R.Evid. 801(d)(2)(A) (“A statement is not hearsay if — [t]he statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity.”). Other Circuit Courts of Appeals have recognized that a defendant’s prior testimony is admissible in a subsequent criminal prosecution as an admission of a party-opponent. See, e.g., Bacon v. Lee, 225 F.3d 470, 484 (4th Cir. 2000) (“As the district court recognized, Bacon’s prior testimony [at a first sentencing hearing] would have been admissible at the resentencing hearing in any event as admissions of a party-opponent,” so defendant’s counsel was not ineffective in reading that prior testimony into the record to “remove the sting”), cert. denied, 532 U.S. 950, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001); United States v. McClellan, 868 F.2d 210, 215 (7th Cir.1989) (the defendant’s prior testimony and written admissions from an adversary proceeding in bankruptcy were admissible pursuant to Rule 801(d)(2) at a subsequent criminal trial). As explained above, Honken’s admissions during his sentencing on the 1996 charges demonstrate the relationship between Honken, Angela Johnson, alleged murder victims Greg Nicholson and Terry DeGeus, former associates and alleged murder targets Daniel Cobeen and Timothy Cutkomp, and the persons Honken allegedly solicited to murder Mr. Cobeen and Mr. Cutkomp, who are identified in the indictment as Dean Donaldson and Anthony Altimus, thus establishing the context of and potential motives for the offenses charged in Counts 1 through 17 of the present indictment. Indeed, Honken does not appear to dispute that his prior testimony in the change-of-plea hearing and sentencing hearing constituted admissions, again relying on other bars to admissibility of the evidence. Thus, in the absence of any other bar, Honken’s own sworn testimony from the change-of-plea hearing and the 1998 sentencing hearing is admissible in the trial of all of the present charges as admissions pursuant to Rule 801(d)(2)(A). c. Judicial estoppel Honken asserts that there are nevertheless bars to admission of the evidence of his prior conviction and testimony at his change-of-plea and sentencing hearings. First, he argues that admission of the evidence is barred by the doctrine of judicial estoppel. As the Eighth Circuit Court of Appeals very recently explained, judicial estoppel “ ‘prohibits a party from taking inconsistent positions in the same or related litigation.’” United States v. Grap, 368 F.3d 824, 830-31 (8th Cir.2004) (quoting Hossaini v. Western Mo. Med. Ctr., 140 F.3d 1140, 1142 (8th Cir.1998)). “ ‘[Jjudicial estoppel is an equitable doctrine invoked by a court at its discretion.’ ” Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), with internal quotation marks omitted). The Supreme Court has explained the doctrine of judicial estoppel more fully, as follows: “[Wjhere a party assumes a certain position in a legal proceeding, arid succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a eori-trary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Davis v. Wakelee, 156.U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed.” 578 (1895). This rule, known as judicial es-toppel, “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Pegram v. Herdrich, 530 U.S. 211, 227, n. 8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000); see 18 Moore’s Federal Practice § 134.30, p. 134-62 (3d ed. 2000) (“The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding”); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4477, p. 782 (1981) (hereinafter Wright) (“absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory”). New Hampshire v. Maine, 532 U.S. at 749, 121 S.Ct. 1808. The factors that “typically inform the decision whether to apply the doctrine in a particular case” are the following: (1) “a party’s later position must be ‘clearly inconsistent’ with its earlier position;” (2) “whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create -‘the perception that either the, first or the second court was misled”; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750-51, 121 S.Ct. 1808 (citations omitted); Grap, 368 F.3d at 830-31 (“One of the considerations that typically informs the decision of whether to apply the doctrine in a particular case ‘is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ”) (quoting New Hampshire v. Maine, 532 U.S. at 751, 121 S.Ct. 1808). In Grap, however, the Eighth Circuit Court of Appeals expressed substantial doubt that judicial estoppel can be asserted against the government in the context of a criminal prosecution: Mr. Grap has not identified any criminal case in which we have enforced an estoppel against the government. It is true that in United States v. French, 46 F.3d 710, 714 (8th Cir.1995), we assumed, without deciding, that a criminal defendant could assert estoppel. But the Supreme Court has observed that it is “well settled that the Government may not be estopped on the same terms as any other litigant” because “[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined.” Heckler v. Community Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60, 104 S.Ct. 2218, 81 L.Edüd 42 (1984). In fact, “the Supreme Court has repeatedly indicated that an estoppel will rarely work against the government,” Conforti v. United States, 74 F.3d 838, 841 (8th Cir.1996), cert. denied, 519 U.S. 807, 117 S.Ct. 49, 136 L.Ed.2d 14 (1996), and we recently stated that a private party trying to estop the government has “a heavy burden to carry.” Morgan v. C.I.R., 345 F.3d 563, 566 (8th Cir.2003). Grap, 368 F.3d at 830-31. Thus, this court has considerable doubt that judicial estop-pel would apply in this case, even if the pertinent factors were satisfied. More importantly, however, the court finds that those factors are not satisfied here. First, and fatally, the court finds that the government’s prior position that the present charges in Counts 8 through 17 and the conspiracy in the 1996 case for which Honken was convicted are not “the same,” for “former jeopardy” purposes, is not “clearly inconsistent” with the government’s present position that the prior conspiracy conviction is admissible under the res gestae doctrine. See New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808 (first factor). Instead, the court must agree with the government that Honken has mistaken a position that the crimes are not legally “the same,” which the government asserted, for a position that the past and present crimes are “factually distinct,” which the government has never asserted. The government previously argued that the crimes were not “the same,” under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), because the conspiracy underlying the present charges lasted longer, involved more people, and involved additional conduct, even if it involved some of the same conduct, objectives, and people, and overlapped the previously charged conspiracy in time. See Honken, 271 F.Supp.2d at 1104. The government also argued that the past crimes and charged offenses are not “the same” under Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), because the present offenses are not “the same” under a commonsense view, where the present charges involve murders, and the former ones do not. See Honken, 271 F.Supp.2d at 1115. In other words, the government expressly acknowledged the factual overlap in its prior arguments, so that its present assertion that the prior crimes are factually “blended” with and probative of elements of the charged crimes is not “inconsistent.” Moreover, even though the court accepted the government’s argument that the prior crimes and the charged crimes are not “the same,” there is no reasonable perception that the court was misled either the first time or the second time. See Neio Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808 (second factor). Nor is there any “unfair advantage” for the government or “unfair detriment” for Honken where there is no inconsistency in the government’s position. Id. (third factor); Grap, 368 F.3d at 830-31. Thus, judicial estoppel stands as no bar in this case to the admissibility of the evidence of Honken’s conviction of prior crimes and transcripts of his testimony in his change-of-plea and sentencing hearings, even if, as a general proposition, judicial estoppel can be asserted against the government by a criminal defendant. d. Relevance, prejudice, cumulativeness, and “other crimes” Honken next argues that, even if otherwise admissible, the evidence should be barred as irrelevant under Rule 402 of the Federal Rules of Evidence and unfairly prejudicial and cumulative under Rule 403. Honken is correct that irrelevant evidence is inadmissible pursuant to Rule 402, see Fed.R.Evid. 402 (irrelevant evidence is not admissible), and that, even if the evidence might otherwise be admissible, for example, under the res gestae doctrine, “[s]uch evidence is still subject to the requirement of Fed.R.Evid. 403 that its probative value is not substantially outweighed by the danger of unfair prejudice.” Moore, 178 F.3d at 1000. Nevertheless, Honken’s Rule 402 and 403 arguments ultimately are not persuasive. First, as explained above, in relation to the question of admissibility under the res gestae doctrine, the evidence in question is relevant, and thus, not barred by Rule 402, as to any of the present counts. Second, for Rule 403 purposes, the probative value, for all counts, of evidence beyond the mere fact of Honken’s prior conviction outweighs the prejudice, if any, of that evidence, because the evidence explains the context and circumstances of the charged crimes, such as the relationship of the persons involved, the scope of their criminal activities, and the manner in which they carried out those criminal activities. See Roberts, 253 F.3d at 1135 (rejecting one defendant’s assertion that evidence of his prior bank robberies was unfairly prejudicial, because the probative value outweighed any prejudice, where the evidence helped to explain the circumstances of the charged bank robbery and the nature of the defendants’ relationship with regard to the charged crime). Third, the government is not required to settle for a stipulation regarding Honken’s prior conviction, because the Eighth Circuit Court of Appeals has rejected the notion that the government is required to agree to a defendant’s offer to stipulate to the fact of an earlier conviction rather than admitting to the nature of the conviction, where, as here, “ ‘the purpose of the evidence [is not] solely to prove the element of prior conviction,’ ” for example, on a charge of felon in possession of a firearm, but to prove the context of the charged crime or to tend logically to prove the elements of the charged crime. See Jefferson, 215 F.3d at 824 (quoting Old Chief v. United States, 519 U.S. 172, 174, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). The court also agrees with the government that there is an especial potency and probative . value to Honken’s own testimony regarding his prior conduct that weighs in favor of admissibility of this evidence. The court finds no bar to admission of the evidence in question under Rule 402 or Rule 403 of the Federal Rules of Evidence as to all counts in the present indictment. The government asserts, in the alternative, that the 1996 convictions are admissible on all of the present charges as “other crimes” evidence pursuant to Rule 404(b). Even though the crimes in the 1996 case allegedly occurred after the murders charged in Counts 1 through 5 and 8 through 17, “Rule 404(b) applies to evidence of subsequent as well as prior crimes, wrongs, or acts.” United States v. DeAngelo, 13 F.3d 1228, 1231 (8th Cir.) (citing United States v. Johnson, 934 F.2d 936, 939-40 (8th Cir.1991)), cert. denied, 512 U.S. 1224, 114 S.Ct. 2717, 129 L.Ed.2d 842 (1994). Rule 404(b) permits admission of other crimes evidence, for example, to prove “motive,” see Fed.R.Evid. 404(b), and a review of the copious admissions in Honken’s sentencing in the 1996 case, such as his admissions regarding his drug dealing and his relationships with the alleged victims and persons allegedly solicited to murder witnesses, demonstrate that those admissions may, as the government contends, show the “underlying reason” for Honken to kill witnesses in 1993. e. Overbreadth Finally, Honken argues that the government’s request to admit all of his prior testimony in the change-of-plea and sentencing hearings is overbroad and, consequently, should be narrowed to pinpoint specifications of the testimony that the government wishes to introduce. The government argues that Honken’s full testimony is admissible to present fairly the context of all of his admissions. The court, again, agrees with the government, at least to the extent the court can evaluate cumu-lativeness or overbreadth of the evidence prior to trial. 3. Summary The court concludes that the following evidence is admissible on all of the charges in the present indictment, because it is either res gestae evidence or admissions within the meaning of Rule 801(d)(2)(A), or both: (1) certified copies of the judgment in 1998, which was corrected in 2000; (2) a certified transcript of Honk-en’s admissions made during his guilty plea on June 2, 1997; and (3) a certified transcript of his admissions made during his sentencing hearing on February 18, 1998. In the alternative, the evidence is admissible pursuant to Rule 404(b) as “other crimes” evidence demonstrative of Honken’s motives for the alleged murders and alleged solicitation of murders. Furthermore, the court concludes that the admissibility of this evidence is not barred by judicial estoppel, Rule 402 or Rule 403, or “overbreadth” of the designation of the evidence. Therefore, the government’s motion for admission of this evidence will be granted. B. Admissibility Of Maps The government next requests a ruling on the admissibility of hand-drawn maps, purportedly made by Angela Johnson, Honken’s alleged co-conspirator, showing where the bodies of their alleged murder victims were buried. The government initially filed this motion on January 5, 2004 (docket no. 183), then renewed it on February 17, 2004 (docket no. 212), after Honken failed to respond to the initial motion. Honken resisted the renewed motion on March 3, 2004 (docket nos. 224 & 225), then filed a supplemental brief in opposition to the motion on March 19, 2004 (docket no. 230), citing a newly-decided Supreme Court decision, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The government filed a supplemental brief of its own on April 28, 2004 (docket no. 242), regarding the impact, if any, of Crawford on the present case. Consideration of this motion begins with a review of some additional factual background. 1. Additional factual background As this court explained in a ruling in the companion case against Angela Johnson, see United States v. Johnson, 196 F.Supp.2d 795 (N.D.Iowa 2002), rev’d, 338 F.3d 918 (8th Cir.2003), and rev’d, 352 F.3d 339 (8th Cir.2003), a jailhouse informant named Robert McNeese succeeded in obtaining a great deal of information from Johnson while both were incarcerated in the Benton County Jail in the summer and early fall of 2000. On September 18, 2000, McNeese disclosed to an officer at the Benton County Jail that he had obtained from Johnson a map of the location of the bodies of the witnesses that Honken is charged with killing, an explanation of how the witnesses had been killed, and an explanation of Johnson’s involvement in disposing of the murder victims’ bodies. McNeese also claimed to have obtained one or more maps after September 26, 2000, “from the books” in the jail library where he and Johnson left notes for each other. Johnson had purportedly made the maps 'so that McNeese could pass them on to an inmate serving a life sentence in another prison who might be willing to confess to the murders. The maps were intended to provide information to the other inmate to lend credibility to his perjured confession. Although McNeese reiterated to law enforcement officers that he had such a map or maps on two other occasions after September 18, 2000, he initially refused to turn over any such items. Eventually, however, officers obtained from McNeese the hand-drawn maps and notations describing the locations of the graves of the five murder victims and the conditions of their bodies. In October and November 2000, using Johnson’s maps and notes, the government located and exhumed the remains of Greg Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan, and Terry DeGeus. In Johnson’s case, on a motion to suppress the evidence that McNeese had obtained from Johnson, the government conceded, and , this court held, that McNeese was a government agent at the time that he acquired the maps from Johnson. See Johnson, 196 F.Supp.2d at 864-65 (holding that McNeese was a government agent after September 11, 2000). That ruling was not disturbed on appeal, although the Eighth Circuit Court of Appeals overturned this court’s ruling that McNeese had obtained the maps and other evidence in violation of Johnson’s Sixth Amendment right to counsel. See United States v. Johnson, 338 F.3d 918 (8th Cir.2003); United States v. Johnson, 352 F.3d 339 (8th Cir.2003). 2. Arguments of the parties a. Initial arguments In support of its original motion regarding admissibility of the maps, the, government argues that the maps are non-hearsay co-conspirator statements, or .in the alternative, statements falling within a hearsay exception for statements against penal interest. In addition, the government argues that admission of the maps would not violate Honken’s Sixth Amendment right of confrontation. More specifically, the government argues that the maps are statements of a co-conspirator made in the course and in furtherance of the conspiracy, and thus are not hearsay pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence. The government contends that it can establish that the conspiracy existed, that both Honken and Johnson were members of that conspiracy, and that Johnson made the maps in the course and in furtherance of the conspiracy. Indeed, the government contends that the maps themselves are evidence of the conspiracy. The government also contends that the agreement of the conspirators to act, and to continue to act, to cover up their murders to obstruct justice was part of, and in furtherance of, the original conspiracy to commit the 1993 murders and to conceal the bodies in order to avoid prosecution for the conspirators’ drug-trafficking activities. Thus, the government contends, the conspiracy continued to exist as long as Honk-en and Johnson were acting to prevent discovery of their commission of the murders. The government argues that the maps themselves were intended to further this continuing conspiracy, because they were intended to help cover up Honken’s and Johnson’s involvement in the murders by assisting another person to make a false, but convincing confession to the murders. Thus, the government contends, the arrest of Honken and Johnson did not end the conspiracy. In the alternative, the government argues that the maps are statements against Johnson’s penal interest, so that they are admissible pursuant to Rule 804(b)(3) of the Federal Rules of Evidence as an exception to the hearsay rule. The government contends that Johnson is “unavailable,” owing to her Fifth Amendment right against self-incrimination. The government also contends that the maps and notes are statements against penal interest, because they so clearly and directly implicate Johnson in the murders that no reasonable person would have made them had they not been true. Also, the government points out that Johnson’s attempted suicide after she learned that the maps had led to the discovery of the bodies of the murdered witnesses is an indication that she knew the maps incriminated her, as is her comment to her cell mate at the time that she gave the maps to McNeese that she had either set herself free or sent herself to prison for life. The government also contends that the maps and notes are trustworthy, because the statements were not merely self-serving statements to curry favor with law enforcement officers by implicating a third person, but a further attempt by Johnson to avoid the consequences of her own criminal conduct. Finally, in support of its original motion, the government argues that admission of the maps would not violate Honken’s Sixth Amendment right to confrontation, because there are sufficient indicia of the reliability of the evidence, as previously argued, and Johnson is unavailable. In the alternative, the government argues that reliability can be inferred when the statements fall within a firmly-rooted hearsay exception, which they do in this case, as statements of a co-conspirator. When Honken did not file a timely response to the government’s original motion to determine admissibility of the maps, the government filed a renewed motion regarding their admissibility. In that motion, the government contends that its motion should be granted pursuant to the local rules of this court, which provide that a motion to which no timely response is filed may be granted without prior notice by the court. Only after the government filed its renewed motion did Honken respond, and even then, Honken offers no explanation for his failure to respond to the original motion. Instead, Honken points out, first, that the government did not address the authentication and foundation requirements for admission of the maps. Honken reserves the right to raise objections based on lack of foundation and authenticity at trial, if necessary. In a more direct response to the government’s motion, Honk-en argues that determination of the admissibility of the maps under Rules 801 and 804 may be premature, as it may not be possible to make the necessary determinations outside of the context of trial, evidence. Honken also argues that it is less than clear that the maps are admissible pursuant to Rule 801, because it is unclear whether a “subsidiary agreement” to conceal evidence and avoid detection actually was formed during the principal conspiracy and merged into the overall conspiracy in this case. In other words, Honken argues that the government has failed to demonstrate that, if Honken and Johnson were co-conspirators, their original conspiracy included a plan to exert strenuous - efforts to prevent discovery or that Johnson’s maps were not just a “spontaneous reaction” to fear of prosecution. Honken also contends that it is not immediately apparent that the maps were statements in furtherance of a conspiracy, because the making of the maps occurred after the objectives of the conspiracy' — to engage in drug trafficking or to eliminate, influence, or obstruct witnesses — had either been achieved or thwarted by the apprehension and arrest of Honken and Johnson. As to whether or not the maps are admissible pursuant to Rule 804(b)(3), as statements against penal interest, Honken contends that there has as yet been no ruling that Johnson is “unavailable,” nor has there been a ruling on the existence of the Fifth Amendment privilege on which her “unavailability” depends. Honken also argues that there is no corroboration, of whether the maps inculpate or exculpate Honken. Honken also contends that there are Confrontation Clause issues where, as here, the purported statements inculpate both Honken and Johnson, and the reliability of the evidence is uncertain. In this regard, Honken contends that he is handicapped by not knowing what foundational testimony, other means of authentication, or evidence of trustworthiness will be used by the government to support the admissibility of this evidence at trial. b. Supplemental arguments After the Supreme Court handed down its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 17