United States of America v. Pablo Ochoa, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1794
United States of America,
Plaintiff-Appellee,
v.
Pablo Ochoa, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 66--Rudy Lozano, Judge.
Argued September 8, 2000--Decided October 12, 2000
Before Flaum, Chief Judge, and Posner and Rovner,
Circuit Judges.
Flaum, Chief Judge. 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
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.
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

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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.
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.
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.
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.
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

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that amount.
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.
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.
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.
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.
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

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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.
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.
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
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).
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

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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.").
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).
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

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

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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.
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, ___
F.3d ___, 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.
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

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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.
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 fiancee, 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.
2. Rule 807.
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.

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3. Rule 804(b)(6).
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
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
4. Harmless error.
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

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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.
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.
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.
Ochoa’s explanations after the car was delivered

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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.
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
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.
/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

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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.

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