229 F.3d 631 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Pablo Ochoa, Jr., Defendant-Appellant.
No. 00-1794
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 8, 2000Decided October 12, 2000

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.  No. 99 CR 66--Rudy Lozano, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Posner and Rovner,  Circuit Judges.
Flaum, Chief Judge.


1
Pablo Ochoa, Jr., appeals  his conviction for conspiracy to commit mail  fraud in violation of 18 U.S.C. sec. 371. He  challenges the government's use of hearsay  testimony at his trial and argues that venue was  improper. For the reasons stated herein, we  affirm the defendant's conviction.

I.  Background

2
On February 23, 1995, defendant Pablo Ochoa,  Jr., who lived in Chicago Heights, Illinois,  purchased a 1995 Buick Roadmaster for $32,635.  Because he traded in two cars on which he had a  negative equity position, he paid approximately  $7000 more than the Roadmaster was actually  worth. To finance his purchase, he took out a car  loan with monthly payments of $669 for five  years.


3
Shortly after purchasing the Roadmaster, Ochoa  asked Dave McLaughlin, who lived in Ochoa's home  as a tenant, if he knew anyone who could make the  car "disappear." McLaughlin called Gaylen  Strange, his brother-in-law, who had previously  been in the chop shop business, and asked if he  knew of anyone who could dispose of a car.  Strange contacted Mark Hinkle. Hinkle also had  chop shop experience but was now an FBI  informant. Ochoa never had any direct contact  with either Hinkle or Strange. Hinkle contacted  FBI Agent Bill Haman and relayed that Strange  knew an owner who wanted to give up his car.  Hinkle then arranged for Strange to deliver the  Roadmaster to Agent Haman, who was posing as a  chop shop operator.


4
On April 1, 1995, Strange and McLaughlin  delivered Ochoa's car to Agent Haman in  Schererville, Indiana. Strange gave Agent Haman  keys to the car and the car itself at 11:07 a.m.  These keys were copies of the originals, which  had been made at Elmer & Sons, a locksmith near  Ochoa's home. Elmer & Sons sold a key with an  embedded computer chip matching the Roadmaster's  prior to April 3. Agent Haman received the  Roadmaster undamaged, without any evidence of  forced entry. Strange told Agent Haman that the  owner of the Roadmaster was giving up his car.  Agent Haman instructed Strange to tell the owner  to wait three days before reporting the car  stolen and that the owner should claim the car  was stolen from a mall or business area. Agent  Haman also agreed to pay Strange for the car  during the following week.


5
Agent Haman and Strange met again on April 7 in  Kentland, Indiana, where Agent Haman paid Strange  $350. This amount indicates that Strange was  serving as broker for the owner; had he actually  stolen the car, Strange could have made $15,000  from selling the parts. Strange told Agent Haman  that the owner of the car planned to file a bogus  insurance claim. Strange further said that the CD  player in the Roadmaster had a remote control and  offered to get the remote from the owner.


6
On April 4, three days after the Roadmaster had  been delivered to Agent Haman, Ochoa called the  police and reported the car stolen from his  garage. Ochoa informed the responding officer  that he had last seen the car on April 3 at 10:00  p.m. Ochoa also stated that the car was locked  and he still had the keys to the car in his  possession.


7
Ochoa filed an insurance claim and gave a  statement to the adjuster on April 5. Ochoa told  the adjuster that the last time he had seen the  car was April 1 at 2:00 p.m. Ochoa also remarked  that he was unsure whether he could afford the  car. Ochoa was in the midst of some credit  problems at the time and was making payments on  an $89,000 revolving line of credit. The adjuster  did not find that the claim was either wrongful  or fraudulent and recommended payment. The  insurance company determined that $25,550 was the  actual value of the Roadmaster and mailed the  bank holding Ochoa's loan for the car a check for  that amount.


8
FBI Agent Theodore May later interviewed Ochoa.  Ochoa stated that he had last seen the car the  night of April 3 when he parked it in his garage.  Ochoa further told Agent May that he bought the  car for $25,000 and that his monthly payments  were $425.


9
Ochoa and Strange were indicted for conspiracy  to commit mail fraud on April 23, 1999. After his  motion to dismiss the indictment for improper  venue was denied, Ochoa pled not guilty. Strange  originally pled not guilty, but later changed his  plea and agreed to testify for the government  against Ochoa.


10
In the process of building the case, the FBI  attempted to locate McLaughlin, who had moved out  of Ochoa's house. On July 8, Agent May went to  the address where he believed McLaughlin lived  and saw two men sitting on the porch. One man  identified himself as Art Garza, the owner of the  residence; unbeknownst to Agent May, the other  man was McLaughlin. Garza stated that he knew  McLaughlin and might see him in the next few  days. Agent May told both Garza and the  unidentified McLaughlin that McLaughlin could  benefit by talking to the FBI and that he might  not be charged.


11
The next day McLaughlin called Agent May, and  the two agreed to meet at a restaurant.  McLaughlin stated that he was approached by  Ochoa, who asked if he knew anyone who could make  the Roadmaster disappear. Ochoa told McLaughlin  that he was having severe financial problems and  difficulty in paying the loan for the Roadmaster.  McLaughlin explained that he then contacted  Strange and asked if Strange could dispose of the  car. McLaughlin further told Agent May that Ochoa  had made copies of the keys to the Roadmaster in  order to retain the original keys, which would  support Ochoa's claim that the car had been  stolen.


12
As trial approached, the FBI again attempted to  locate McLaughlin to serve him with a subpoena to  appear. Agents returned to Garza's residence  where McLaughlin was still receiving mail. Garza  informed the FBI that McLaughlin had left with  all his belongings and said that he was moving to  Maryland. The FBI spent several days looking for  McLaughlin and obtained a material witness arrest  warrant for him. Agent May also contacted  McLaughlin's employer and learned that he stopped  coming to work when the FBI began looking for  him. However, McLaughlin was owed his last  paycheck. After Agent May left, McLaughlin called  his employer. When McLaughlin hung up, the person  who received the call used "star 69" and  discovered that McLaughlin made the phone call  from Ochoa's residence. Phone records revealed  seven phone calls from Ochoa's home to  McLaughlin's employer over the course of December  16-17, 1999.


13
Ochoa's trial began on January 3, 2000. The  prosecution relied on the testimony of Strange  and Agent Haman, among others. The government  also introduced the statements of McLaughlin  through Agent May over the objection of Ochoa.  The trial judge ruled that this hearsay evidence  was admissible as statements against interest  under Federal Rule of Evidence 804(b)(3), under  the residual exception of Rule 807, and because  Ochoa forfeited his objection due to his own  wrongdoing, as provided in Rule 804(b)(6). Ochoa  testified in his defense that McLaughlin used his  knowledge of Ochoa's home to break into the  residence, take the Roadmaster's keys, make  copies, and then steal the Roadmaster. Ochoa also  stated that he was not at home on December 16-17,  1999, and so McLaughlin must have again broken  into his home to make phone calls to McLaughlin's  employer. The jury found Ochoa guilty, and he was  sentenced to ten months, five to be served in an  institution and five of home confinement.


14
After sentencing, Ochoa filed a notice of  appeal and then a motion for release pending  appeal. The trial court believed that its  decision to admit the hearsay evidence was a  close question, the resolution of which on appeal  in Ochoa's favor would likely result in reversal  or a new trial. Thus, the court granted Ochoa's  motion. This appeal followed.

II.  Discussion
A.  Venue

15
Ochoa argues that Indiana is an improper venue  for his trial. He claims that all of the  essential acts of the conspiracy took place in  Illinois, and thus venue is proper only in  Illinois. The standard of review for a claim of  improper venue is whether the government proved  by a preponderance of the evidence that the  crimes occurred in the district charged, viewing  the evidence in the light most favorable to the  government. See United States v. Tingle, 183 F.3d  719, 726 (7th Cir. 1999); United States v.  Brandon, 50 F.3d 464, 469 (7th Cir. 1997).


16
Trials must be held in the state and district  in which the offense was committed. See U.S.  Const. art. III, sec. 2, cl. 3; Fed.R.Crim.P. 18.  For crimes that occur in more than one state or  district, venue is constitutionally and  statutorily proper in any district in which part  of the crime was committed. See 18 U.S.C. sec.  3237(a); Tingle, 183 F.3d at 726. Thus, the  traditional rule is that a conspiracy charge may  be tried in any district in which an overt act of  the conspiracy occurred. See United States v.  Rodriguez, 67 F.3d 1312, 1318 (7th Cir. 1995);  United States v. Molt, 772 F.2d 366, 369 (7th  Cir. 1985) ("As long as one overt act in  furtherance of the conspiracy is committed in a  district, venue is proper there.").


17
Ochoa argues that United States v. Cabrales,  524 U.S. 1 (1998) creates a distinction between  essential and unessential acts, and that venue is  proper only where the essential acts of a crime  took place. Under his theory, all of the  essential acts, such as the formation of the  conspiracy and the mailing of the false claim,  took place in Illinois and so venue is proper  only there. Ochoa is incorrect. Cabrales stands  for the proposition that venue is improper in a  district if the only acts that occurred in that  district do not provide evidence of the elements  of the charged crime. Id. at 6-7. In Cabrales,  the government tried the defendant for a money  laundering charge in the state where the funds  were generated, even though the laundering itself  occurred in a different state. The indictment on  this charge did not involve a conspiracy or  allege that the funds had been transported from  one state to another. The definition of money  laundering criminalizes only the financial  transactions in which the money is laundered, and  not the prior conduct which generated the money.  For purposes of the laundering charge described  in the indictment, the location of the illegal  revenue generating activities was not just  unessential, but wholly irrelevant. Thus,  Cabrales does not involve any notion of  unessential acts but rather clarifies which acts  are part of the crime charged and which acts are  not. Cabrales noted that the laundering count in  that case did not charge a conspiracy that would  link the defendant to the acts of others done in  different states, id. at 7, and distinguished a  decision cited by the government on the grounds  that the case involved a conspiracy charge, id.  at 8. The Supreme Court recently reaffirmed the  settled proposition that for conspiracy charges  "venue [is] proper against [the] defendant in  [any] district where [a] co-conspirator carried  out overt acts even though there was no evidence  that the defendant had entered that district or  that the conspiracy was formed there." United  States v. Rodriguez-Moreno, 526 U.S. 275, 281-82  (1999).


18
In our case, the government's evidence shows  two overt acts tending to prove the elements of  the crime with which Ochoa is charged, conspiracy  to commit mail fraud, occurred in Indiana. First,  Ochoa's Roadmaster was delivered to Agent Haman  in Indiana. Second, Strange returned to Indiana  to collect his payment for brokering the car  between its owner, Ochoa, and the supposed chop  shop operator, Agent Haman. Thus, venue is proper  in Indiana.

B.  Hearsay

19
Ochoa argues that McLaughlin's statements could  not constitutionally be admitted under any of the  three Federal Rules of Evidence relied upon by  the district court, 804(b)(3), 807, and  804(b)(6). Ochoa claims that using this  impermissible hearsay at his trial violated his  rights under the Confrontation Clause of the  Sixth Amendment. The government argues that the  evidence was properly introduced, and even if it  was not, the error is harmless. Where the  defendant's Sixth Amendment right to confront  witnesses is directly implicated, our review is  de novo. See United States v. Williamson, 202  F.3d 974, 978 (7th Cir. 2000).


20
1.  Rule 804(b)(3).


21
Examination of whether a co-conspirator's or  accomplice's statements against penal interest  are admissible against a defendant takes place in  two parts, one statutory and the other  constitutional. First, the testimony must be  admissible under Rule 804(b)(3). The Federal  Rules of Evidence do not exclude such statements  if (1) the declarant is unavailable; (2) the  statement is against the declarant's penal  interest; and (3) corroborating circumstances  indicate the trustworthiness of the statement.  See United States v. Shukri, 207 F.3d 412, 416  (7th Cir. 2000); United States v. Robbins, 197  F.3d 829, 838 (7th Cir. 1999). In addition, where  a party seeks to introduce a narrative, each  portion must be examined, and only those  individual statements that inculpate the  declarant are admissible. See Williamson v.  United States, 512 U.S. 594, 600-601 (1994);  United States v. Nagib, 56 F.3d 798, 804 (7th  Cir. 1995).


22
Second, because a co-conspirator's statements  incriminating the defendant do not fall within a  firmly rooted hearsay exception, the  Confrontation Clause requires that such evidence  contain "particularized guarantees of  trustworthiness" such that cross-examination  would be of marginal utility in determining the  truthfulness of the statements. See Lilly v.  Virginia, 527 U.S. 116, 134 & n.5, 136 (1999)  (plurality opinion); Robbins, 197 F.3d at 839.  Such guarantees must be shown by the  circumstances of the statements themselves and  cannot be proven by other evidence produced at  trial. See Lilly, 527 U.S. at 137-38; United  States v. Castelan, 219 F.3d 690, 695 (7th Cir.  2000). A very strong presumption of unreliability  attaches to statements of co-conspirators where  the statements (1) are produced through  government involvement; (2) describe past events;  and (3) have not been subject to adversarial  testing. See Lilly, 527 U.S. at 137; Castelan,  219 F.3d at 695.


23
Ochoa argues that the FBI's losing track of  McLaughlin's whereabouts does not make him  unavailable for purposes of introducing hearsay  testimony. The government, which is the party  seeking to introduce the hearsay statements,  bears the burden of showing that the declarant  was unavailable. See United States v. Reed, 277  F.3d 763, 2000 WL 1277945, *2 (7th Cir. 2000).  The prosecution met this burden. The FBI spent  several days trying to locate McLaughlin. They  spoke to his employer, his landlord, and other  individuals, and obtained a material witness  arrest warrant as well. These activities  constitute a reasonable, good faith effort to  uncover McLaughlin. The fact that after this kind  of search the FBI was unable to find him  demonstrates that McLaughlin was unavailable for  purposes of the hearsay exceptions. Id.


24
However, McLaughlin's statements do not have  particularized guarantees of trustworthiness as  required by the Constitution, and therefore his  statements should not have been admitted under  Rule 804(b)(3).1 The high presumption of  unreliability applies because Agent May was  involved in eliciting McLaughlin's statements,  McLaughlin described events of the conspiracy  that occurred in the past, and the statements  were not adversarially tested. The circumstances  in which McLaughlin made the statements cannot  overcome this presumption. When Agent May  approached Garza and said that McLaughlin could  benefit by talking to the FBI, McLaughlin was  sitting on Garza's porch and heard this  proposition. Agent May informed McLaughlin that  he could either be charged or cooperate and  possibly not be charged when the two met.  McLaughlin was also told that he was considered  a lesser target of the investigation compared to  Ochoa and Strange. Agent May's presentation gave  McLaughlin a strong incentive to curry favor with  the FBI by falsely implicating his two co-  conspirators so that he would not be charged. See  Robbins, 197 F.3d at 840. Similarly, McLaughlin's  story spread the blame to the other participants  in the conspiracy and particularly Ochoa, whom  McLaughlin claims came up with the idea of  engaging in insurance fraud. Id. at 839-40. Agent  May also informed McLaughlin of all the facts as  May knew them before asking McLaughlin to tell  his story. This gave McLaughlin an opportunity to  prevaricate by confirming possibly false parts of  Agent May's story and then shaping his own  statements into what May wanted to hear rather  than what really happened. "One of the most  effective ways to lie is to mix falsehood with  truth, especially truth that seems particularly  persuasive because of its self-inculpatory  nature." Williamson, 512 U.S. at 599-600.


25
The government relies on Robbins in claiming  that McLaughlin's statements bear the requisite  guarantees of trustworthiness. However, the  declarant in Robbins made the hearsay statements  to his fianc e, rather than an FBI agent as in  the instant case. 197 F.3d at 840. As the above  analysis shows, statements made by a co-  conspirator to a law enforcement official are far  less likely to be trustworthy, and thus Robbins  is distinguishable. The government also argues  that McLaughlin came to Agent May and was under  no compulsion to make the statements in question.  While voluntariness is a factor in determining  whether statements against penal interest that  incriminate other participants should be admitted  into evidence, id., voluntariness alone is not  sufficient to overcome the very strong  presumption of unreliability that attaches to  McLaughlin's statements in this case.


26
2.  Rule 807.


27
Rule 807 is a recodification of former Rules  803(24) and 804(b)(5), and thus the same  requirements for admitting evidence under these  prior residual exceptions to the hearsay rule  apply to 807. These requirements are (1)  circumstantial guarantees of trustworthiness; (2)  materiality; (3) probative value; (4) the  interests of justice; and (5) notice. See United  States v. Hall, 165 F.3d 1095, 1110 (7th Cir.  1999). In addition, almost by definition, Rule  807 is not a firmly rooted exception to the  hearsay rule. See United States v. Wesela, 223  F.3d 656, 664 (7th Cir. 2000). Therefore, only  hearsay testimony containing particularized  guarantees of trustworthiness as shown by the  circumstances in which the statements were made  may constitutionally be admitted under this Rule.  See Ohio v. Roberts, 448 U.S. 56, 66 (1980). But  as the Rule 804(b)(3) analysis shows,  McLaughlin's statements do not contain such  guarantees. Thus, admitting McLaughlin's  statements under Rule 807 violates the  Confrontation Clause in the same way that their  admission under Rule 804 (b)(3) does.


28
3.  Rule 804(b)(6).


29
The doctrine that a defendant may waive his or  her constitutional right to confront witnesses by  misconduct has been codified in Rule 804(b)(6).  See United States v. Emery, 186 F.3d 921, 926  (8th Cir. 1999). Statements that would otherwise  be inadmissible hearsay may be introduced into  evidence if "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). The government claims that this  showing of procured unavailability must be made  by a preponderance of the evidence, and Ochoa  does not dispute that this is the correct  standard.2


30
Ochoa does argue that the evidence is  insufficient to prove wrongdoing. We agree. The  government's only evidence on this issue is the  seven phone calls made from Ochoa's residence to  McLaughlin's employer on December 16 and 17,  1999, at least one of which was made by  McLaughlin. Ochoa claims he was not at his home  on those days and that McLaughlin, his former  longtime tenant who knew the layout of Ochoa's  residence, broke into his house and made the  calls. Even if Ochoa permitted McLaughlin to make  these calls, the evidence in this case is not  sufficient for Ochoa to have forfeited his  constitutional rights. Rule 804(b)(6) requires  the conduct at issue to be wrongful, and  permitting a witness at one's upcoming trial to  use a phone, without more, is not a culpable act.  The government has not produced evidence that  Ochoa knew McLaughlin was intending to flee, and  thus has not proven that Ochoa knowingly aided  McLaughlin in becoming unavailable. If Ochoa did  not know that he was helping McLaughlin to  procure McLaughlin's unavailability, then Ochoa's  conduct could not have been wrongful as required  by the Rule.3


31
4.  Harmless error.


32
The admission of McLaughlin's hearsay statements  was erroneous and violated Ochoa's rights under  the Confrontation Clause. However, constitutional  error that is harmless will not cause an  otherwise valid conviction to be set aside. See  Delaware v. Van Arsdall, 475 U.S. 673, 684  (1986); Castelan, 219 F.3d at 696. The test is  whether the reviewing court can determine beyond  a reasonable doubt that the error did not  contribute to the verdict. See Neder v. United  States, 527 U.S. 1, 15-16 (1999). In analyzing  whether an error is harmless, we look to factors  such as (1) the importance of the witnesses's  testimony in the prosecution's case; (2) whether  the testimony was cumulative; (3) whether other  evidence corroborated or contradicted the  witness's material testimony; and (4) the overall  strength of the prosecution's case. See Van  Arsdall, 475 U.S. at 684; Castelan, 219 F.3d at  696.


33
The first and second factors weigh somewhat in  favor of the government. McLaughlin's statements  establish that Ochoa approached him with a plan  to commit insurance fraud, he and Ochoa asked a  local locksmith to make a duplicate of the  Roadmaster's keys, and Ochoa had a financial  incentive to file a fraudulent claim. Though not  as direct as McLaughlin's testimony, independent  evidence supports the facts of each of these  statements. Ochoa was unquestionably the owner of  the Roadmaster, and Strange told Agent Haman that  the car's owner intended to file a bogus  insurance claim. Agent Haman received a set of  keys for the car that had been made at Elmer &  Sons, and the locksmith's records showed that a  key encoded with the same computer chip as for  Ochoa's Roadmaster had been sold during the  period preceding April 3, 1995. Ochoa admitted on  cross-examination that the Roadmaster was worth  less than the amount of the loan he took out to  pay for it.


34
The third and fourth factors more strongly  support finding harmless error. The facts just  recounted corroborate McLaughlin's statements and  add weight to the prosecution's case. Ochoa's  motive is established because the Roadmaster was  worth less than its loan. A set of duplicate keys  for the Roadmaster was made during the time prior  to April 3, 1995, so that Ochoa could retain the  originals and the copies could be delivered to  the chop shop. Ochoa retained the original set of  keys to make his claim of theft more believable,  while the copies permitted the Roadmaster to be  delivered to the chop shop undamaged. Strange  told Agent Haman that the owner of the Roadmaster  intended to file a fraudulent insurance claim,  and Ochoa was the car's owner. The government  presented additional evidence as well. Strange  was paid only $350, indicating that he was  brokering the car between Ochoa and a chop shop,  since he could have sold the parts of a stolen  Roadmaster for a much higher amount. Strange  stated that he could get the car's CD remote from  the owner, strongly suggesting Ochoa's  involvement, since he was the owner of the car.  Agent Haman told Strange to inform the owner that  he should wait three days before calling in the  claim, which is what Ochoa did.


35
Ochoa's explanations after the car was delivered  to the FBI contain numerous prevarications, which  are positive evidence of his guilt. See United  States v. Jocic, 207 F.3d 889, 893 (7th Cir.  2000); United States v. Zafiro, 945 F.2d 881, 888  (7th Cir. 1991), aff'd on other grounds, 506 U.S.  534 (1993). The Roadmaster was in possession of  the FBI on the morning of April 1, 1995. Ochoa  told the police officer who responded to his car  theft report that the night of April 3 was the  final time he saw the Roadmaster, which is  impossible. In his conversation with the  insurance adjuster, Ochoa stated that he saw the  car for the last time during the afternoon of  April 1, which is inconsistent with his statement  to the police and is also a lie. Ochoa returned  to his original false story when he spoke with  the FBI, again claiming that he had last seen the  Roadmaster on the night of April 3. These varying  accounts show that Ochoa was attempting to cover  up the fact that he waited a few days after the  Roadmaster's disappearance before reporting the  car stolen, as requested by Agent Haman. Ochoa  also told the FBI that he paid only $25,000 for  the car and that his loan payments were $425 per  month. In fact, he had paid over $32,000 and his  payments were $669 a month. These statements  indicate that Ochoa attempted to hide his motive  for getting rid of the Roadmaster.


36
In sum, the jury was presented with credible  evidence that Ochoa had his car stolen so that he  could file a false insurance claim, had a  financial motive to do so, and falsely attempted  to cover up both his act and motive. Given such  circumstances, we find beyond a reasonable doubt  that the jury would have convicted Ochoa without  McLaughlin's statements, and so the admission of  the hearsay testimony was harmless error.

III.  Conclusion

37
The hearsay testimony of McLaughlin was  improperly admitted because it did not possess  particularized guarantees of trustworthiness and  Ochoa was not proven to have engaged in  wrongdoing in procuring the absence of  McLaughlin. However, the government provided a  substantial amount of evidence demonstrating  Ochoa's guilt besides these statements.  Therefore, the judgment of the district court is Affirmed.



Notes:


1
 McLaughlin's conversation with Agent May was also  introduced as a whole, in possible violation of  Williamson. However, Ochoa does not raise this  argument and so we need not analyze whether  certain portions of the narrative should have  been excluded.


2
 Most courts to consider this question have held,  and Fed.R.Evid. 804 advisory committee's note  states, that a preponderance of the evidence is  the correct standard of proof for determining  whether the defendant engaged or acquiesced in  wrongdoing, though some contrary authority  exists. See Emery, 186 F.3d at 926-27 (collecting  cases and discussing conflict). Since Ochoa does  not argue this issue, we will not address it.


3
 Ochoa also argues that even knowingly aiding a  witness in becoming unavailable is not sufficient  for Confrontation Clause rights to be forfeited  under Rule 804(b)(6). Ochoa is correct that  apparently all of the cases applying this Rule  and its judicially created predecessor involve  much more egregious conduct, such as murder or  threats of violence, than what Ochoa may have  done. See, e.g., United States v. Johnson, 219  F.3d 349, 355-56 (4th Cir. 2000) (murder); Emery,  186 F.3d at 926 (murder); United States v.  Aguier, 975 F.2d 45, 47 (2d Cir. 1992) (threats).  On the other hand, no case has refused to apply  the Rule to such circumstances, and Fed.R.Evid.  804 advisory committee's note says that criminal  conduct is not required for forfeiture. Since we  find that the evidence is insufficient to prove  that Ochoa knowingly helped McLaughlin disappear,  we need not determine whether Rule 804(b)(6)  would cause a defendant's hearsay objections to  be forfeited if applied to such facts.


