Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ PRE-TRIAL MOTIONS ON ADMISSIBILITY OF EVIDENCE BENNETT, Chief Judge. TABLE OF CONTENTS TABLE OF CONTENTS I. INTRODUCTION.. t> 05 A. Background . Z£> U-C75 1. The 1993 case . <X> t-05 2. The 1996 case . ct-C5 B. Procedural Background To The Present Case .. C-Oí 1. Indictments in the present case. CL-05 2. Pre-trial motions. T-t CO 05 II. LEGAL ANALYSIS.981 A. The Government’s Motions.981 1. Cutkomp’s instances of indecent exposure..981 a. Arguments of the parties.982 b. Analysis.983 2. Statements of decedents.986 a. The statements in question.986 i. Statements by DeGeus.986 ii. Statements by Nicholson.987 b. Admissibility of DeGeus’s statements..987 i. Arguments of the parties.987 ii. Analysis.989 c. Admissibility of Nicholson’s statements..994 i. Arguments of the parties.994 ii. Analysis.995 3. Discussion of aspects of the death penalty .995 a. Arguments of the parties.995 b. Analysis.996 4. Exclusion of experts .1000 B. The Defendant’s Motion .1000 1. Evidence of Honken’s escape attempt.1001 a. Arguments of the parties.1001 b. Analysis.1001 2. Books seized from Honken’s residence.1003 a. Arguments of the parties.1003 b. Analysis.1004 3. The Ecstacy Cookbook .1004 a. Arguments of the parties.1005 b. Analysis.1005 4. Publications and order form purportedly seized from Honken’s locker .1005 a. Underlying factual dispute.1005 b. Arguments of the parties.1006 c. Analysis.1006 5. Testimony of former attorney.1007 a. Arguments of the parties.1007 b. Analysis.1008 6. Honken’s membership in the Odinists.1008 a. Arguments of the parties.1008 b. Analysis.1009 III. CONCLUSION .1009 In this death penalty case, involving the alleged murder of five witnesses to the defendant’s drug-trafficking or other alleged criminal conduct, the parties have now filed a second series of pre-trial motions on the admissibility of various kinds of evidence. The evidence at issue in the present motions is so varied as to defy ready categorization, although the motions do involve questions of the admissibility of both testimonial and physical evidence. I. INTRODUCTION A. Background 1. The 1993 case As in the ruling on the first series of pre-trial motions, the background to these motions 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 ease 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, ie., 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, 2001 WL 66287 (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 1111. 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 communi-eating 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 At issue in this ruling are the following pre-trial motions on the admissibility of evidence: (1) the government’s May 28, 2004, Motion In Limine Regarding Cut-komp’s Instances Of Public Exposure (docket no. 263); (2) the government’s June 1, 2004, Request For Hearing And Pretrial Ruling Regarding Admissibility Of Out Of Court Statements Made By Decedents Nicholson And DeGeus (docket no. 264); (3) the government’s June 14, 2004, Motion In Limine To Bar Discussion Or Evidence Of Certain Aspects Of The Death Penalty (docket no. 278); (4) the defendant’s June 18, 2004, Motion In Li-mine (docket no. 288); (5) the government’s June 22, 2004 Motion To Exclude Expert Evidence From Michael Gelbort (docket no. 289); and (6) the government’s June 22, 2004, Motion In Limine To Exclude Evidence From Lisa Rickert (docket no. 292). All of the motions were eventually resisted. The court set oral arguments on these motions for July 1, 2004. At the hearing, the United States was represented by C.J. Williams, Assistant United States Attorney, from Cedar Rapids, Iowa, and .Thomas Henry Miller, Assistant Iowa Attorney General, from Des Moines, Iowa. Defendant Dustin Lee Honken was represented by Alfredo G. Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles & Gribble, L.L.P., in Des Moines, Iowa; Leon F. Spies of-Mellon & Spies in Iowa City, Iowa; and Charles Rogers of Wyrsch, Hobbs & Mirakian, P.C., in Kansas City, Missouri. The motions are now fully submitted. The court will consider each motion in turn. II. LEGAL ANALYSIS A. The Government’s Motions 1. Cutkomp’s instances of indecent exposure The government first seeks an order in limine barring defendant Honken from making any reference to, asking questions concerning, or introducing evidence of witness Timothy Cutkomp’s past behavior of indecent exposure. The government explains that Mr. Cutkomp, one of the government’s witnesses in its case-in-chief, was convicted on March 24, 1995, in the Iowa District Court for Cerro Gordo County of the crime of indecent exposure, a misdemeanor, in violation of Iowa Code § 709.9; that he was arrested twice for such conduct, but not prosecuted; and that he admitted at Honken’s sentencing hearing in 1997 that he had engaged in numerous other instances of indecent exposure, including a few instances while he was in Arizona in 1992 and many more subsequently in Iowa. a. Arguments of the parties In its supporting brief, the government argues that Cutkomp’s conviction for indecent exposure is not admissible under Rule 609(a) of the Federal Rules of Evidence, because the conviction was for a misdemeanor not punishable by more than one year of incarceration, nor is it a conviction for a crime that involved dishonesty or a false statement. The government argues that Cutkomp’s admissions concerning other instances of indecent exposure are likewise inadmissible under Rule 608 of the Federal Rules of Evidence, because they are not probative of his truthfulness or untruthfulness. Acts indicating a proclivity to engage in inappropriate conduct, the government contends, are not subject to inquiry, even on cross-examination. Even if evidence of Cutkomp’s acts of indecent exposure might otherwise be admissible, the government argues that the court should exclude such evidence pursuant to Rule 403 of the Federal Rules of Evidence, because the evidence is unfairly prejudicial and of little or no probative value. The government argues that the prejudice would be the tendency of the evidence to cause jurors to evaluate Cutkomp’s testimony on the inappropriate ground of an emotional response to his acts of indecent exposure. Moreover, the government contends that the evidence does not, in any way, make facts at issue in the case against Honken any clearer. The government contends that inquiry into these incidents would be an unwarranted intrusion into the private life of the witness, because it would embarrass Cutkomp, and would confuse or mislead the jury as to what issues are really on trial here. In its oral arguments, the government argued that there is no evidence that the instances of indecent exposure had any impact on Cut-komp’s memory or perception of critical events and that the instances of such conduct are not themselves probative of any issue in the trial. Thus, the government contends that presentation of this evidence is intended by the defense as a prejudicial misdirection. Honken filed no timely response to this motion in limine. Instead, on June 28, 2004, well after the deadline for a timely response, and without requesting leave to file an untimely response, Honken filed a resistance to the government’s motion. In his untimely resistance, Honken contends that Cutkomp’s aberrant behavior corresponded with his drug manufacturing activity and occurred at the time that Honk-en allegedly intimidated Cutkomp into complicity in the deaths of Nicholson, the Duncans, and DeGeus. Consequently, Honken argues that the evidence of Cut-komp’s repeated acts of indecent exposure are relevant to his credibility, as they are evidence of his mental health and stability and pertinent to the issues of his memory and the accuracy of his perceptions both during and after the incidents at issue in this case. Honken points out that Cut-komp testified that his acts of indecent exposure provided him with a vehicle for “escaping” from the pressures generated by his drug activities, marital friction, and his relationship with Honken. Therefore, Honken argues that he should be entitled to probe whether Cutkomp’s attempts to “escape” also resulted in a suspension of reality, lack of memory, alteration of consciousness, or other mental state affecting the credibility of his testimony. Honken argues that the government cannot show that the relevance of the evidence is outweighed by potential prejudice, because Cutkomp is a critical witness, so that inquiries into his mental and emotional difficulties are guaranteed by the Confrontation Clause of the Sixth Amendment. Honken also argues that Cutkomp and the government have made the subject an appropriate one for cross-examination and jury consideration. In his oral arguments, Honken reiterated that the evidence is probative of Cutkomp’s mental and emor tional state, memory, and perception of critical events, not least because Cutkomp himself indicated that the instances of indecent exposure eventually caused him to consult a psychiatrist. Moreover, Honken contended that Cutkomp’s failure to make full disclosures to law enforcement officers of the instances of indecent exposure is probative of his truthfulness. b. Analysis Evidence of a felony conviction is admissible under Rule 609(a)(1) of the Federal Rules of Evidence, subject to the limitations of Rule 403. Fed.R.Evid. 609(a)(1); Jones v. TEK Indus., Inc., 319 F.3d 355, 360 (8th Cir.2003). Similarly, evidence of a conviction for a crime involving “dishonesty or false statement” is admissible “regardless of the punishment” under Rule 609(a)(2). Fed.R.Evid. 609(a)(2). It is readily apparent that Cutkomp’s conviction for misdemeanor indecent exposure is not admissible under Rule 609(a), because it is neither a conviction for a felony nor a conviction for a crime involving “dishonesty or false statement.” Thus, no Rule 403 balancing is required as to that conviction; it simply is not admissible pursuant to Rule 609. The government also asserts that Cutkomp’s other incidents of indecent exposure are not admissible under Rule 608(b). Rule 608(b) states, in pertinent part, as follows: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness ... may not be proved by extrinsic evidence.... They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness ... concerning the witness’ character for truthfulness or untruthfulness. Fed.R.Evid. 608(b). The Eighth Circuit Court of Appeals has explained that “Rule 608(b) applies when a party attempts to introduce evidence of prior" conduct of a witness that standing alone tends to attack or support the witness’s general character for truthfulness.” United States v. Bolzer, 367 F.3d 1032, 1038 (8th Cir.2004) (citing United States v. James, 609 F.2d 36, 46 (2d Cir.1979) (“[Rule 608(b)] was intended to regulate only the use of specific instances of conduct to prove that the witness is a ‘bad person’ or is a generally untruthful person who should not be believed.”)). Thus, the “focus” of Rule 608(b) is “an attack on [a witness’s] general character.” Id. at 1039. The Eighth Circuit Court of Appeals has explained, further, that “[t]he reason for barring extrinsic evidence ‘is to avoid holding mini-trials on peripherally related or irrelevant matters.’ ” United States v. Elliott, 89 F.3d 1360, 1368 (8th Cir.1996) (quoting United States v. Martz, 964 F.2d 787, 789 (8th . Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 823, 121 L.Ed.2d 694 (1992)), cert. denied, 519 U.S. 1118,117 S.Ct. 963, 136 L.Ed.2d 849 (1997). “ ‘To the extent that such evidence is ever admissible, the introduction of extrinsic evidence to attack credibility is subject to the discretion of the trial court.’ ” Id. (quoting United States v. Johnson, 968 F.2d 765, 766 (8th Cir.), cert. denied,- 506 U.S. 980, 113 S.Ct. 481, 121 L.Ed.2d 386 (1992)). The actual instances of Cutkomp’s indecent exposure, however, do not “standing alone tend[ ] to attack [Cutkomp’s] general character for truthfulness.” Bolzer, 367 F.3d at 1038. Standing alone, they would do no more than suggest that he is a “bad person.” Id. (citing James, 609 F.2d at 46). Thus, they are not “probative of truthfulness” such that the court should permit inquiry on cross-examination into specific instances of such conduct. See Fed.R.Evid. 608(a). Moreover, engaging in a review of extrinsic evidence of specific instances of indecent exposure would run the risk of “ ‘holding [a] mini-trial[ ] on peripherally related or irrelevant matters.’ ” Elliott, 89 F.3d at 1368 (quoting Martz, 964 F.2d at 789). Thus, Rule 608 does not permit the admission of evidence of uncharged instances of indecent exposure. Honken nevertheless asserts that this evidence is admissible, because a witness’s mental impairment, including evidence of psychiatric difficulties, is an issue of credibility properly entrusted to the consideration of a jury in weighing the “reliability” of that witness. In support of this contention, Honken cites various cases which he asserts hold that schizophrenia, a history of drug-induced hallucinations, and use of street drugs and anti-anxiety medications are relevant to cross-examination of a witness’s credibility. See Frank v. Brookhart, 877 F.2d 671, 675-76 (8th Cir. 1989) (schizophrenia), cert. denied, 493 U.S. 1027, 110 S.Ct. 736, 107 L.Ed.2d 754 (1990); United States v. Ramirez, 871 F.2d 582, 583-84 (6th Cir.1989) (street drugs and anti-anxiety medications), cert. denied, 493 U.S. 841, 110 S.Ct. 127, 107 L.Ed.2d 88 (1989); United States v. Eschweiler, 745 F.2d 435, 438 (7th Cir.1984) (drug-induced hallucinations), cert, denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d 334 (1985); see also Andrews v. Neer, 253 F.3d 1052, 1062-63 (8th Cir.2001) (civil case involving a witness’s involuntary commitment for schizophrenia). The court has no quibble with the general proposition that mental impairment is an issue of credibility — and at oral arguments, neither did the government. That is not the end of the matter, however, because Honken attempts to apply the proposition too broadly. The overbreadth of Honken’s argument is that Cutkomp’s instances of indecent exposure do not, in and of themselves, demonstrate a mental impairment that affects his testimonial capacity in the same way that schizophrenia or habitual drug use, as in the cited cases, might. Thus, despite the correctness of the general proposition Honken asserts — that evidence of a mental impairment is admissible on issues of credibility — evidence of Cutkomp’s instances of indecent exposure are, at best, only marginally relevant to his credibility. Indeed, the court concludes that it is not the admission of evidence of the instances of indecent exposure themselves that would be justified by Honken’s arguments, but the admission of evidence tangentially related to those instances. First, Honken argues that the instances of indecent exposure should be admissible, because Cutkomp testified that those instances were attempts to “escape” that eventually caused him to seek psychiatric help. More specifically, Honken asserts that evidence that Cutkomp engaged in “escapist” conduct and sought psychiatric help can be used to impeach Cutkomp’s memory and perception, because, inter alia, the Confrontation Clause requires the opportunity to inquire into a witness’s mental state, citing Frank, 877 F.2d at 676-77. In Frank, the court noted that “ ‘[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.’ ” Frank, 877 F.2d at 677 (quoting Delaware v. Fensterer, 474 U.S. 15, 21-22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)). Rather, the court held that the Confrontation Clause was satisfied where the defendant “had the opportunity to question [the witness], including inquiries into her mental state.” Id. Thus, the opportunity to inquire into Cutkomp’s mental state, including the extent to which his “escapist” conduct may have impaired his memory or perceptions, and the extent to which the conduct required psychiatric help, is required to satisfy the Confrontation Clause. Nevertheless, admission of evidence of the underlying conduct is not necessary to that inquiry, at least where that conduct did not itself involve deceit or dishonesty. Thus, Honken’s first argument for admissibility of the evidence of instances of indecent exposure actually supports the admissibility of an inquiry into whether Cutkomp had a mental impairment potentially affecting his testimonial capacity of which the instances of indecent exposure were only a symptom; it does not support the admissibility of evidence of the instances of indecent exposure themselves. Honken may inquire into whether Cutkomp sought psychiatric help and whether the psychiatrist diagnosed a condition affecting his memory, perception, or emotional stability, and also may inquire whether the instances of “escape” impaired Cutkomp’s memory or perception, but may only do so without inquiring into the nature of the instances of indecent exposure that may have been intended as “escapes” and may have prompted him to seek psychiatric help. To put it another way, the probative evidence is that Cutkomp attempted to “escape” his situation through misdemeanor conduct and sought psychiatric help, not that he engaged in the underlying conduct of indecent exposure. See Fed.R.Evid. 401 (relevant evidence is admissible, irrelevant evidence is not). Second, Honken argues that Cutkomp failed to disclose all of the instances of indecent exposure to law enforcement officers in response to their questions about his past criminal conduct.' This argument goes to whether Cutkomp was untruthful with law enforcement officers about his past criminal conduct, so that his testimony on other matters might also be suspect. Again, Cutkomp’s failure to disclose all of the instances of criminal conduct to law enforcement officers is probative of his character for truthfulness, but evidence of the underlying conduct itself is not probative of his truthfulness, and inquiry into that conduct is not necessary to an inquiry about the extent to which he made a full disclosure of instances of criminal conduct. Thus, neither of Honken’s arguments warrants admission of the evidence of instances of indecent exposure pursuant to Rule 401 and 402, because the underlying conduct is not probative of Cutkomp’s mental state, memory, perception, or character for truthfulness. Moreover, even if the underlying conduct were somehow marginally probative of these issues, the court finds that the potential for unfair prejudice from evidence that the underlying conduct was indecent exposure clearly outweighs that limited probative value, warranting exclusion of that evidence pursuant to Rule 403. “Under Rule 403 of the Federal Rules of Evidence, ... ‘[ujnfair prejudice’ ... means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” United States v. Malik, 345 F.3d 999,1003 (8th Cir.2003) (quoting advisory committee’s note to Rule 403); United States v. Lupino, 301 F.3d 642, 646 (8th Cir.2002) (also quoting the advisory committee note). The unfair prejudice from this evidence, as the government suggests, is that the jury will make a determination of Cutkomp’s credibility on the improper, emotional basis of a reaction to the nature of his instances of indecent exposure, not on the basis of any indications of impairment of his memory or perception that might arise from a mental condition of which the instances of indecent exposure might be a symptom, or on the basis that he failed to make a full disclosure of criminal conduct to law enforcement officers. At the oral arguments, the court suggested that a “middle ground” or, more accurately, a clear delineation of the extent to which evidence of Cutkomp’s instances of indecent exposure are or are not admissible at trial under Rules 608, 609, and 403 might be possible. For example, the court suggested that references could be limited to “a misdemeanor conviction” and “acts constituting misdemeanor violations of the law” that caused Cutkomp to see a psychiatrist or that Cutkomp failed to disclose fully to law enforcement officers. Honken suggested that the underljdng problem itself went to Cutkomp’s emotional and psychological state, which is an argument that the court rejected above. The government suggested that some link between the conduct and an effect on Cutkomp’s memory or perception should be established before the evidence was admissible in any form, but the government cited no authority for that proposition. The court in Frank held that the petitioner had failed to adduce any evidence that the challenged witness was suffering from a mental illness during trial. See Frank, 877 F.2d at 676 (also finding that the psychiatrist who examined the witness later testified that the witness’s mental problems did not affect her ability to perceive events or impair her testimonial capacity). However, in Frank, the burden on the party asserting the witness’s impairment was discussed in the context of a petition for habeas corpus relief from a conviction based on “new evidence” of the witness’s schizophrenia, not in the context of some burden on a criminal defendant, during trial, to demonstrate that a witness suffers from a mental impairment affecting memory or perception, before evidence of the witness’s mental state can be inquired into on cross-examination. Indeed, Frank suggests that it is the opportunity to inquire into a witness’s mental state that is required to satisfy the Confrontation Clause. See Frank, -877 F.2d at 677 (holding that the Confrontation Clause was satisfied where the defendant “had the opportunity to question [the witness], including inquiries into her mental state”). Therefore, the court concludes that the government’s motion to exclude evidence of Cutkomp’s instances of indecent exposure will be granted to the extent that the parties, counsel, and witnesses may not make any reference to, ask questions concerning, or introduce evidence of witness Timothy Cutkomp’s past behavior of indecent exposure, but they may refer to these instances as “a misdemeanor conviction” and “acts constituting misdemeanor violations of the law” that caused Cutkomp to see a psychiatrist or that Cutkomp may have failed to disclose fully to law enforcement officers. 2. Statements of decedents In its second motion, the government seeks a ruling on the admissibility of out-of-court statements allegedly made by decedents Nicholson and DeGeus. The government explains that, prior to his death, Terry DeGeus made several statements to others about the alleged drug-trafficking conspiracy in which he was involved with Honken; where he was going the evening that he disappeared, including specific statements that he was meeting Angela Johnson; and his concerns about being indicted by or called as a witness before a federal grand jury. The government also explains that Gregory Nicholson made various statements to law enforcement officers and testified before a grand jury about his relationship with Honken and their drug-trafficking activities. a. The statements in question i. Statements by DeGeus. More specifically, ,the government contends that there will be evidence of the following statements by Terry DeGeus: (1) that Der Geus told Kristin Thompson that he was to pick up methamphetamine from Honken on March 17, 1993, the day that Honken was first arrested on drug charges, that the methamphetamine and some powder for “cutting” the methamphetamine was coming from out of state, and that Angela Johnson owed him $2,400 for methamphetamine; (2) that about a week before his disappearance, DeGeus asked his mother, Joanne DeGeus, if a subpoena had arrived for him, and that on November 5, 1993, he delivered his daughter, Ashley, to his mother’s home and told both his mother and his daughter that he was going to meet Angela Johnson; (3) that on November 5, 1993, DeGeus told his daughter, Ashley, that he was going to Angela Johnson’s house because she wanted to talk to him, that he was planning to pick up some things from Johnson, and that he would return by 12:30 a.m.; and (4) that on November 5, 1993, at approximately 7:00 p.m., when DeGeus ran into a friend, Rhonda Hanson, at a grocery store in Britt, Iowa, DeGeus told Hanson that he was going to Mason City to see Angela Johnson. ii. Statements by Nicholson. The government also explains that, prior to his death, Gregory Nicholson gave statements to law enforcement officers and testified before a grand jury describing his drug-trafficking relationship with Honken and others. More specifically, the government contends that there will be evidence that on March 17, 1993, while law enforcement officers were executing a search warrant for Nicholson’s home, Nicholson was questioned by Investigator Frank Stearns • of the Mason City Police Department and that during that questioning, Nicholson made the following statements: (1) that some methamphetamine was hidden in his house and where it was; (2) that he got the methamphetamine from Honken; (3) that Honken had a “meth lab” in Arizona; (4) that Honken brought up shipments of methamphetamine to Iowa every couple weeks for approximately a year; (5) that Nicholson owed Honken money for the last shipment of methamphetamine; (6) that Honken dropped off methamphetamine to another person unknown to Nicholson in Mason City; (7) that Honken charged Nicholson $1,200 an ounce for pure methamphetamine, but that Nicholson resold it for $1,500 an ounce; and (8) that Honken was coming to Mason City that weekend and that Nicholson was willing to cooperate with law enforcement officers. Nicholson subsequently assisted law enforcement officers with a “controlled buy” of methamphetamine from ' Honken on March 21, 1993, at which time Honken was arrested. On April 20, 1993, DEA Special Agent David Mizell interviewed Nicholson, at which time Nicholson made statements about his involvement with Honken and about Honken’s drug manufacturing and distribution enterprise. Later that same day, Nicholson appeared before a federal grand jury in Cedar Rapids, Iowa, at which time he provided sworn testimony about his involvement with, and knowledge of, Honken’s drug manufacturing and trafficking enterprise. b. Admissibility of DeGeus’s statements i. Aryuments of the parties. The government argues that neither the Constitution, federal law, the Federal Rules of Evidence, nor Supreme Court rulings bar the admission of the evidence of DeGeus’s statements. More specifically, the government contends that DeGeus’s statements are not “hearsay” within the meaning of Rule 802 of the Federal Rules of Evidence, because the government is not offering the statements to prove the truth of the matter asserted. Rather, the government argues that DeGeus’s statements to his mother about a subpoena and to his mother, daughter, and Rhonda Hanson about where he was going on November 5, 1993, will be offered to show that DeGeus “feared the ramifications of being involved in Honken’s criminal drug prosecution and that a relationship existed between Terry DeGeus and Angela Johnson.” Government’s Memorandum In Support Of Government’s Request For Hearing And Pretrial Ruling Regarding Admissibility Of Out Of Court Statements Made By Decedents Nicholson And DeGeus (docket no. 264) at 8. If the statements are hearsay, the government contends that they fall within several exceptions, including present sense impression (Rule 803(1)), then existing mental state (Rule 803(3)), and forfeiture by wrongdoing (Rule 804(b)(6)), the last exception premised on the government’s contention that DeGeus is unavailable to testify because Honken .killed him. The government also contends that admission of the statements would not violate Honken’s confrontation rights under the standards set forth in either Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), or Craiuford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As to admissibility under Roberts, the government contends that the statements are reliable, under the circumstances, as merely informational and off-the-cuff, and that DeGeus is plainly unavailable. As to admissibility under Crawford, the government -contends that the statements were not “testimonial,” even if they were “hearsay,” so that Crawford does not apply. The government also contends that the hearsay exception for forfeiture by wrongdoing trumps or excludes the statements from the requirements set forth in Crawford. At the oral arguments, the government all but dropped its contention that De-Geus’s statements were not hearsay and instead focused on the admissibility of the evidence as hearsay. Under questioning from the court, the government also elaborated on the procedures that it asserted would be applicable to admission of De-Geus’s and Nicholson’s statements under the hearsay exception for forfeiture by wrongdoing. The government suggested a procedure akin to the procedure for determining the admissibility of co-conspirator hearsay statements: the statements would be conditionally admitted, but if the government ultimately failed to establish by a preponderance of the evidence that the witnesses were unavailable because Honk-en killed them, then the statements would be inadmissible and a mistrial would be all but inevitable. The government candidly stated that, if it could not establish the forfeiture by wrongdoing exception premised on Honken’s murder of the witnesses, then its principal charges that Honken murdered these witnesses were also hopelessly weak. For his part, Honken contends that De-Geus’s statements are, indeed, hearsay, because the government is offering the statements for their truth, where the government has other less prejudicial and more direct means to establish that there was some kind of a relationship between DeGeus and Johnson. Thus, Honken contends that the statements are offered to show that DeGeus was actually planning to meet Johnson on the night of his disappearance. Honken also contends that the statements are not admissible as present sense impressions, because there is no substantial contemporaneity of event and statement, so that the statements could have been fabrications to point a finger at Honken. Honken contends that the statements also are not admissible under the “state of mind” exception, because they are too uncertain, to demonstrate the point they are purportedly intended to prove, and because they do not address matters at issue in the case, where whether or not DeGeus and Johnson had a relationship is not at issue. Honken next contends that the statements are not admissible on the basis of forfeiture by wrongdoing, because the government has made no more than conclusory assertions, without factual support, that Honken is responsible, for DeGeus’s unavailability. Honken also contends that the statements should be excluded pursuant to Rule 403 of the Federal Rules of Evidence, because it is impossible to think that the statements that DeGeus was going to meet Johnson would only be used by the jury to determine whether or not DeGeus and Johnson had a relationship. Just as importantly, Honken contends that admitting DeGeus’s purported statements would violate his rights under the Confrontation Clause of the Sixth Amendment. The statements fail the Roberts test, he contends, because there are insufficient indicia of reliability, where the reasons for the statements are too uncertain. Honken contends that the statements also fail the Crawford test, because they are “testimonial.” This is so, Honken contends, because under the circumstances, DeGeus would reasonably have expected his statements to be used prosecutorially: Honken contends that it is entirely possible that DeGeus made statements about a subpoena, not because he feared the consequences of his testimony, but because he was attempting to make statements to implicate his killer in the event that something happened to him, and that he made statements about where he was going on November 5, 1993, for the same reason. In the absence of the opportunity to cross-examine the declarant, Honken contends that such statements violate his confrontation rights. Honken also rejects the government’s contention that forfeiture ■ by wrongdoing makes the Crawford requirements irrelevant, because the government makes only conclusory assertions that Honken is responsible for DeGeus’s unavailability. At the oral arguments, Honken contended that the best procedure to address the admissibility of DeGeus’s statements under the forfeiture by wrongdoing hearsay exception was a proceeding outside of the presence of the jury. Honken at first appeared to argue that, in such a proceeding, the government’s evidence should be limited to the evidence of the hearsay statements themselves. Honken asserted that the determination of the admissibility of the statements of the deceased witnesses should be made only on the basis of the evidence of their statements, because the admissibility of the evidence raised constitutional questions. To allow consideration of other evidence to support the admissibility of the decedent’s statements, Honken argued, would result in a fundamentally unfair trial. Honken then appeared to clarify or change his ground to contend that a prima facie showing that the witnesses were, unavailable because of his wrongdoing should be limited to a showing with regard to DeGeus and Nicholson only, not all of the witnesses that he allegedly killed or intimidated. ii. Analysis. The court finds that the government wisely retreated from its assertion that DeGeus’s statements are not hearsay, because they purportedly are not offered for their truth. It is all but inevitable that the jury will take statements by DeGeus that he was going to meet Johnson on the night he disappeared for their truth — that is, as evidence that DeGeus ivas indeed going to meet Johnson — and for the government to assert that it does not intend such an inference is disingenuous at best. Equally disingenuous is an assertion that DeGeus’s statements that he expected a subpoena would not be offered or reasonably taken as evidence of their truth. Thus, the court readily concludes that the statements are hearsay. See Fed.R.Evid. 801 (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Hearsay, of course, is not admissible in the absence of an applicable exception. See Fed. R.Evid. 802 (“Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.”). The government asserts that several hearsay exceptions are applicable to DeGeus’s statements, and the court will consider them in turn. First, the government asserts that the “present sense impression” exception of Rule 803(1) is applicable. Rule 803(1) provides that “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” is not excluded by the hearsay rule. See Fed.R.Evid. 803(1). “ ‘The underlying rationale of the present sense impression 'exception is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant’s] defective recollection or conscious fabrication.’ ” United States v. Manfre, 368 F.3d 832, 840 (8th Cir.2004) (quoting United States y. Blakey, 607 F.2d 779, 785 (7th Cir.1979), and also citing United States v. Beck, 122 F.3d 676, 681-82 (8th Cir.1997)). “The present-sense-impression exception to the hearsay rule is rightfully limited to statements made while a declarant perceives an event or immediately thereafter, and [the Eighth Circuit Court of Appeals] declined to expand it to cover a declarant’s relatively recent memories.” Id. Thus, statements made after too much time has passed are not admissible under this exception. Id. On the other hand, statements made about events that were “part of a single, continuous event” may have sufficient “contemporaneity” to fall within this exception. United States v. Beck, 122 F.3d 676, 682 (8th Cir.1997). Here, it is not clear what “event” DeGeus was purportedly “perceiving” when he made statements that he was expecting a subpoena or that he was going to meet Johnson. See Fed.R.Evid. 803(1) (the exception applies to a statement describing or explaining an event or condition while perceiving it); Manfre, 368 F.3d at 840 (the 803(1) exception is limited to statements while the declarant perceives an event or immediately thereafter). Also, it is unclear what the temporal relationship was between perception of any such event and the statements in question, such that it is difficult to assess whether the statements have sufficient contemporaneity to fall within the exception. Manfre, 368 F.3d at 840 (the exception is justified by the belief that contemporaneity of the event and the statement minimize unreliability from defective recollection or conscious fabrication); Beck, 122 F.3d at 682 (the exception requires “contemporaneity”). Thus, the “present sense impression” exception is an uncomfortable fit for the statements at issue here. So much so, that the court does not believe that this exception warrants the admission of De-Geus’s statements. The government’s contention that the statements fall within the “state of mind” exception of Rule 803(3) fares better. The “state of mind” exception applies to “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.” Fed.R.Evid. 803(3). Numerous courts have recognized that this hearsay exception applies to statements of future intention, such as De-Geus’s statement of his future intention to meet Johnson. See, e.g., Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 36 L.Ed. 706 (1892) (holding that statements of a declarant’s future intent are admissible to show that the declarant acted in conformity with his intention); United States v. Bishop, 291 F.3d 1100, 1110 (9th Cir.2002) (same), cert. denied, 537 U.S. 1176, 123 S.Ct. 1002, 154 L.Ed.2d 920 (2003); United States v. Best, 219 F.3d 192, 198 (2d Cir.2000) (rejecting the defendant’s argument that there had to be independent evidence corroborating that the intent actually took place, and holding that, “[i]f relevant, such a statement [of future intention] may be introduced to prove that the declarant thereafter acted in accordance with the stated intent”), cert, denied, 532 U.S. 1007, 121 S.Ct. 1733, 149 L.Ed.2d 658 (2001); see also Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004) (holding that, under Massachusetts law, the state-of-mind exception permits the admission of statements that demonstrate the declarant’s intent to perform some future act); Kansas State Bank in Holton v. Citizens Bank of Windsor, 737 F.2d 1490, 1497 (8th Cir.1984) (noting that Missouri’s version of Rule 803(3) applies to statements of future intention). DeGeus’s statements of his future intention to meet Johnson on the night he disappeared are, therefore, plainly admissible pursuant to Rule 803(3) to show that he acted in conformity with that intention. The government also relies on the “forfeiture by wrongdoing” hearsay exception in Rule 804(b)(6). That exception applies to “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed.R.Evid. 804(b)(6). In United States v. Emery, 186 F.3d 921 (8th Cir.1999), cert. denied, 528 U.S. 1130, 120 S.Ct. 968, 145 L.Ed.2d 839 (2000), the Eighth Circuit Court- of Appeals explained that “[t]he rule contains no limitation on the subject matter of the statements that it exempts from the prohibition on hearsay evidence. Instead, it establishes the general proposition that a defendant may not benefit from his or her wrongful prevention of future testimony from a witness or potential witness.” Emery, 186 F.3d at 926. The court held that the exception is applicable to a missing witness’s statements even in a trial for murdering that witness, not just in a trial for the underlying crimes about which the defendant allegedly feared that the missing witness would testify. Id. (involving a charge of killing a federal informant in violation of 18 U.S.C. § 1512(a)(1)(C), a charge also at issue here). The court then explained the proper procedure for admitting evidence under such an exception: Mr. Emery also disputes the procedure that the trial court used to admit this hearsay evidence. He contends that the trial court should have held a preliminary hearing outside the presence of the jury, at which the prosecution would have had to prove by clear and convincing evidence that Mr. Emery procured Ms. Elkins’s unavailability. The trial court, instead, admitted the evidence at trial in the presence of the jury contingent upon proof of the underlying murder by a preponderance of the evidence. In doing so, the trial court followed cases dealing with the hearsay statements of co-conspirators: In those cases, evidence is admitted conditionally subject to proof by a preponderance of the evidence that the defendant and the declarant were co-conspirators. See United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978). We agree with the trial court that a procedure adapted from the co-conspirator cases was appropriate in the present context. See [United States v.] White, 116 F.3d [903,] 911-12 [(D.C.Cir.) (per curiam), cert. denied, 522 U.S. 960, 118 S.Ct. 390, 391, 139 L.Ed.2d 305, 306 (1997)]. In so ruling, we are motivated by the functional similarity of the questions involved and by the fact that the repetition necessarily inherent with a preliminary hearing would amount to a significant waste of judicial resources. See id. at 914-16. The trial court did not therefore err in denying Mr. Emery a preliminary hearing. The co-conspirator cases also provide guidance with respect to the issue of the relevant standard of proof. Although one federal appellate court has compared the situation in cases like the present one to the admissibility' of in-court identifications that follow tainted out-of-court identifications, añd has required proof of predicate facts by clear and convincing evidence, see United States v. Thevis, 665 F.2d 616, 629-30 (5th Cir.1982), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303, 458 U.S. 1109, 102 S.Ct. 3489, 73 L.Ed.2d 1370, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982), we again follow the model of co-conspirator cases, and thus require proof by a preponderance of the evidence. See Bell, 573 F.2d at 1044. In so deciding, we align ourselves with the majority of circuits that have considered this question. See, e.g., White, 116 F.3d at 912, and [United States v.J Houlihan, 92 F.3d [1271,] 1280 [(1st Cir.1996), cert. denied, 519 U.S. 1118[, 117 S.Ct. 963, 136 L.Ed.2d 849] (1997)]. Emery, 186 F.3d at 926-27. Thus, the Eighth Circuit Court of Appeals has expressly rejected the procedure advocated by Honken and adopted the procedure advocated by the government for determining the admissibility of evidence pursuant to Rule 804(b)(6). The court in Emery also expressed its doubt that the admissibility of evidence pursuant to this exception must be made “independently of the hearsay in question.” Id. at 927. Nevertheless, assuming for the sake of argument that there was such a requirement, the court held that there was sufficient independent evidence in the record in that case “that Mr. Emery ‘engaged or acquiesced in wrongdoing that was intended to, and did,’ procure [the witness’s] unavailability, see Fed.R.Evid. § 804(b)(6).” Id. Here, the court will await trial to determine whether there is sufficient, independent evidence ultimately to support the admission of. the evidence, assuming, as did the court in Emery, that such independent evidence is required. Honken appeared to make the obverse contention in this case, that is, that the admissibility of the evidence had to be established by the hearsay itself. Such a contention, the court finds, is unpersuasive. ' To be admissible, evidence falling within the “forfeiture by wrongdoing” hearsay exception must certainly be relevant to some e