United States v. Lentz , 58 F. App'x 961 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 02-19
JAY E. LENTZ,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-01-150-A)
Argued: December 4, 2002
Decided: February 6, 2003
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished opinion. Judge Michael wrote an opinion in
which Judge King concurred in part I and concurred in the result in
part II.B. Judge Traxler wrote an opinion concurring in the judgment.
Judge King wrote an opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Vincent L. Gambale, Assistant United States Attorney,
Steven D. Mellin, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant.
Michael William Lieberman, Assistant Federal Public Defender,
Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty,
2 UNITED STATES v. LENTZ
United States Attorney, Matthew W. Friedrich, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellant. Frank W. Dunham, Jr., Federal
Public Defender, Frances H. Pratt, Research & Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia; Frank Salvato, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
MICHAEL, Circuit Judge:
The government takes this interlocutory appeal to challenge the
district court’s in limine determination that six statements made to
others by the missing victim in a federal kidnapping and murder case
are inadmissible. The court affirms by a divided vote.
I conclude that the district court did not abuse its discretion in
deciding that the statements are excludable under Federal Rule of Evi-
dence 403 because their probative value is substantially outweighed
by the danger of unfair prejudice. Judge Traxler has written a separate
opinion concurring in the judgment to affirm and concluding that the
statements are inadmissible under Rule 804(b)(6)’s forfeiture by
wrongdoing exception to the hearsay rule. Judge Traxler would not
reach the Rule 403 issue. Judge King has also written a separate opin-
ion concurring in part and dissenting in part. He concurs in part I of
my opinion (reciting the facts and procedural history) and in the result
in part II.B (dealing with the two "Jay did it" statements). Judge King
dissents, however, from the judgment to affirm the orders excluding
the four "O.J. statements." He concludes that the O.J. statements are
not excludable under Rule 403. He would remand, giving the govern-
ment the opportunity to introduce the O.J. statements under Rule
804(b)(6) if it could prove, by a preponderance of the evidence, that
the defendant engaged in wrongdoing that was intended to, and did,
render his alleged victim unavailable as a witness.
UNITED STATES v. LENTZ 3
I.
Jay E. Lentz (Lentz) is charged with kidnapping and murdering his
ex-wife, Doris Lentz (Doris), who disappeared on April 23, 1996.
Specifically, a grand jury in the Eastern District of Virginia indicted
Lentz for kidnapping resulting in death (count 1), see 18 U.S.C.
§ 1201(a); kidnapping (count 2), see id.; and interstate domestic vio-
lence (count 3), see id. § 2261(a)(2). The government is seeking the
death penalty on count 1 and has filed the required notice. See id.
§ 3593(a). The district court suspended proceedings, which were sev-
eral days into jury selection, when the government filed this interlocu-
tory appeal. See 18 U.S.C. § 3731 (allowing the government to appeal
an evidentiary ruling in a criminal case before jeopardy attaches).
The government’s projected case is bottomed on facts relating to
a bitter domestic relations and divorce dispute between Lentz and
Doris. The two were married in 1989, and their only child, Julia, was
born in 1991. Lentz filed for divorce in 1993, and a final divorce
decree was entered in 1995. By early spring of 1996 Lentz and Doris
were involved in hotly contested litigation concerning property divi-
sion and child custody, support, and visitation. On March 29, 1996,
several weeks before Doris disappeared, the family court ordered the
garnishment of Lentz’s wages to satisfy his child support obligations.
At that time Lentz was also subject to a court order requiring him to
pay Doris $28,000 for her share of certain marital property and, in
addition, to pay her one-half of the proceeds from the anticipated sale
of their residential property. Another hearing in the divorce case to
deal with property and payment issues had been set for April 24,
1996, the day after Doris disappeared. Doris’s disappearance enabled
Lentz to keep all proceeds from the sale of the house, avoid the court-
ordered buyout of other marital property, and gain custody of his
daughter.
The government’s theory is that Lentz murdered Doris to avoid the
consequences of the divorce proceedings and to exact final revenge
against her for her aggressive stance in the litigation. The government
contends, based almost entirely on circumstantial evidence, that Lentz
murdered Doris after luring her from Virginia, where she lived, to his
house in Maryland. Just days before Doris’s disappearance, Lentz
allegedly told two witnesses in a conversation about his divorce pro-
4 UNITED STATES v. LENTZ
ceedings, "I’ll kill her [Doris] first before Julia is taken from me." On
the evening of April 23, 1996, Doris told a friend that she was leaving
to go to Lentz’s house to pick up their daughter, Julia. At that time,
however, Julia was still in Indiana visiting Lentz’s parents. This indi-
cates, according to the government, that Lentz lied to Doris in order
to trick her into coming to his house that evening. The day before, on
April 22, 1996, Lentz had contacted the realtor with whom he had
listed his house to make sure that no prospective buyers would visit
for several days. After Doris’s disappearance Lentz made conflicting
statements about whether he had seen Doris on April 23: although he
told police that he had not seen his ex-wife on April 23, he told his
daughter’s babysitter that he had let Doris know that she should not
come over to the house, "but she came anyways." On April 28, 1996,
five days after Doris disappeared, police found her abandoned car in
Washington, D.C. Blood stains on the passenger side contained
Doris’s DNA, and one spot of blood found in the car contained
Lentz’s DNA. The government has evidence that Doris was afraid of
Lentz because he was abusive towards her and threatened her. This
evidence includes six statements, set out in the next paragraph, that
Doris made to others before her disappearance in which she indicated
that Lentz had hinted that he might kill her or in which she expressed
the belief that he might kill her.
On January 11, 2002, the government filed a motion in limine to
admit a number of Doris’s statements under various exceptions to the
hearsay rule, including the forfeiture by wrongdoing exception under
Fed. R. Evid. 804(b)(6). On May 14, 2002, the district court issued
a comprehensive, seventy-six-page order that granted the govern-
ment’s motion in part and denied it in part. The government takes
exception to the district court’s exclusion of the following six state-
ments: (1) Doris’s statement to a pastor at her church, the Reverend
Lauren Gough, that Lentz told her that "if O.J. [Simpson] can get
away with it, so can I." (2) Doris’s statement to another of her pastors,
the Reverend Victoria Heard, that Lentz asked Doris if she was
watching the O.J. Simpson trial and told her that "O.J. could happen
again" and that if he (Lentz) got to her, "there would be no body." (3)
Doris’s statement to an Arlington County, Virginia, police officer that
Lentz told her that "O.J. had the right idea." (4) Doris’s statement to
her boyfriend, Tim O’Brien, that Lentz told her that the O.J. Simpson
case could happen again. (5) Doris’s statement to nurse Ruth Colvin
UNITED STATES v. LENTZ 5
(or Cauvin) that "if anything ever happens to me — Jay did it." (6)
Doris’s statement to nurse Ann Sarkes that "if she ever turned up dead
— tell police Jay did it." (We refer to statements (1) through (4) as
"the O.J." statements and to statements (5) and (6) as "the Jay did it"
statements.)
The district court ruled that none of the six statements were admis-
sible under Fed. R. Evid. 804(b)(6)’s forfeiture by wrongdoing excep-
tion. In the alternative, the court ruled that all six statements should
be excluded under Rule 403 because their probative value is substan-
tially outweighed by the danger of unfair prejudice. The government
filed a motion for reconsideration, asking the district court to recon-
sider its Rule 403 determination and, in the alternative, to consider
redactions to the statements. The district court denied the motion to
reconsider on September 3, 2002, the day before the trial was sched-
uled to begin. On September 13, 2002, after jury selection had begun
but before a jury was empaneled and sworn, the government invoked
18 U.S.C. § 3731 and filed this interlocutory appeal of the district
court’s orders excluding the six out-of-court statements made by
Doris.
II.
Again, the district court held that the six statements at issue were
not admissible under Rule 804(b)(6)’s forfeiture by wrongdoing
exception to the hearsay rule. The court went on to hold that even if
the statements qualify under an applicable hearsay exception, they
must still be excluded under Rule 403 because they pose an undue
risk of unfair prejudice. The forfeiture by wrongdoing issue is a chal-
lenging one. We do not decide it, however, because we are divided
in approach.
Rule 403 provides that "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the dan-
ger of unfair prejudice . . . ." Fed. R. Evid. 403. On appeal we give
substantial deference to a district court’s decision to exclude evi-
dence, and we will not reverse unless there is a clear abuse of discre-
tion. United States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997)
(quotation omitted). A district court abuses its discretion in an eviden-
tiary ruling only if it acts arbitrarily or irrationally. Id. This broad dis-
6 UNITED STATES v. LENTZ
cretion extends as a matter of course to a district court’s
determination under Rule 403 that evidence is unfairly prejudicial. It
must be kept in mind, however, that "[e]vidence that is highly proba-
tive invariably will be prejudicial to the defense," and legitimate
"damage to a defendant’s case is not a basis for excluding probative
evidence." United States v. Grimmond, 137 F.3d 823, 833 (4th Cir.
1998). Unfair prejudice "means an undue tendency to suggest deci-
sion on an improper basis, commonly, though not necessarily, an
emotional one." Fed. R. Evid. 403 Advisory Committee’s Note. Thus,
exclusion is warranted when there is "a genuine risk that the emotions
of the jury will be excited to irrational behavior, and this risk is dis-
proportionate to the probative value of the offered evidence." United
States v. Wells, 163 F.3d 889, 896 (4th Cir. 1998) (quotation omitted).
In the end, a district court’s Rule 403 decision to exclude evidence
that is unduly prejudicial "should not be overturned except under the
most extraordinary of circumstances." United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996) (internal quotation omitted).
A.
In evaluating the O.J. statements under Rule 403, the district court
first considered their probative value. The statements, the court recog-
nized, are probative of Doris’s fear of Lentz and are "relevant to nec-
essary elements of the charged offenses such as [Lentz’s] intent." It
also appears that the district court considered whether the government
has other, less prejudicial, means of proof to establish the points it
wanted to make through the O.J. statements. See United States v.
Lachman, 48 F.3d 586, 593 (1st Cir. 1995) ("In applying Rule 403,
it is plainly pertinent to consider whether a litigant has some alterna-
tive way to establish a fact that involves no (or at least a lesser) risk
of prejudice . . . ."). In its comprehensive memorandum order the dis-
trict court ruled admissible a number of Doris’s statements that
reflected her fear of Lentz and his threats against her. These include:
(1) Doris’s statements to one of her pastors, Rev. Heard, that she was
very afraid of Lentz; (2) Doris’s statements to her boyfriend that she
was fearful, scared, and concerned that Lentz would kill her; (3) her
deposition testimony (in the divorce proceedings) recounting her
statements to others about Lentz’s abusive behavior towards her; and
(4) her reports to the police about Lentz’s abuse and harassing tele-
phone calls to her. The court will also admit some thirty hours of
UNITED STATES v. LENTZ 7
recorded telephone conversations and messages between Lentz and
Doris that reveal Lentz’s hostility towards Doris after the two sepa-
rated in 1991. These conversations and messages, the district court
said, bear upon Lentz’s intent and motive. Finally, with respect to
Lentz’s intent and motive, the district court was aware that the gov-
ernment has two witnesses who will testify that Lentz told them, in
a conversation about his divorce, "I’ll kill her [Doris] first before Julia
is taken from me."
The district court carefully considered the probative value of the
O.J. statements, the availability to the government of other evidence,
and the potential for unfair prejudice if the statements were admitted.
The court ultimately concluded:
The probative value of [the O.J. statements] is substantially
outweighed by the unfair highly prejudicial effect such
statements could have on the jury’s deliberations. Indeed,
one would be hard pressed to find evidence more likely to
excite the emotions of the jury and cause it to act irrationally
than hearsay statements presented in a domestic kidnaping
case laden with references to the infamous O.J. Simpson
case.
Later, in denying the government’s motion for reconsideration, the
district court added that "[t]he O.J. Simpson case has become a short
hand way to describe tragic domestic violence and the inflammatory
inference of getting away with murder." The O.J. statements, the
court held, were inadmissible under Rule 403.
The question of whether O.J. statements such as the ones here are
admissible or inadmissible is a close one, at least for a trial court. On
the one hand, a trial court might conclude that the O.J. Simpson case
has lost its shock value and that any risk that references to O.J. Simp-
son would excite a jury to act irrationally would not outweigh the pro-
bative value of O.J. remarks made by a defendant to his victim. Cf.
United States v. Papajohn, 212 F.3d 1112, 1121 (8th Cir. 2000) (con-
cluding that the prosecutor’s comparison of the defense to that used
in the O.J. Simpson trial was not prejudicial); People v. Thurston, No.
H022583, 2002 WL 984774, at *5-6 (Cal. App. 6 Dist. May 14, 2002)
(unpublished opinion) (upholding the trial court’s determination that
8 UNITED STATES v. LENTZ
the prosecutor’s reference to the O.J. Simpson case in a domestic vio-
lence prosecution was not unduly prejudicial and noting that the refer-
ence to Simpson was necessary to give meaning to the defendant’s
remarks to the victim that "O.J. got off").
On the other hand, a trial court might conclude, as did the district
court here, that a reference to O.J. Simpson is modern-day shorthand
for suggesting that someone has gotten away with murder; and, as a
result, O.J. Simpson statements have an undue tendency to inflame a
jury and suggest decision on an improper basis. Cf. State v. Thomp-
son, 578 N.W.2d 734, 743 (Minn. 1998) (stating that "[no] purpose
is served by comparing [defendant] to another [such as O.J. Simpson]
charged with a notorious crime other than to attempt to impassion the
jury"). Indeed, there is support for the district court’s conclusion that
O.J. remarks have become shorthand to describe getting away with
murder, especially the murder of a domestic partner. Cf. The Online
Slang Dictionary, at http://www.ocf.berkeley.edu/~wrader/slang/
o.html (defining "OJ" as "to stab" or "to kill," as in "Go ahead, OJ
them"). More important, there is support for the district court’s con-
clusion that the O.J. Simpson case still excites public emotion. A poll
taken by Zogby International in 2001, six years after the trial, reveals
that many Americans remain fascinated by the Simpson case and still
have strong feelings about it. The Zogby poll found that the public
ranks the brutal double murder of Nicole Brown Simpson and Ron
Goldman as one of America’s greatest unresolved crimes. Finally, the
poll found that seventy-two percent of Americans continue to believe
that O.J. Simpson is guilty, despite his acquittal. See As Seen on This
Morning’s NBC Today Show: Truth or Conspiracy: The O.J. Case
After Seven Years, Why Americans Are Still Divided Over Who
Killed Nicole Brown Simpson and Ron Goldman (Aug. 7, 2001), at
http://www.zogby.com/search/ReadNews.dbm?ID=442.
In deciding whether to affirm or reverse the district court’s decision
to exclude the O.J. statements under Rule 403, we must remember our
limited role in reviewing an evidentiary ruling by a district court. We
must give the ruling substantial deference, and we must not reverse
it unless the district court has clearly abused its discretion by acting
arbitrarily or irrationally. I see nothing arbitrary or irrational in the
district court’s decision to exclude the O.J. statements. The district
court was painstaking in its consideration. The court weighed the pro-
UNITED STATES v. LENTZ 9
bative value of the statements and took into account the other means
of proof available to the government. The court expressed concern
that the statements could excite the emotions of the jury, and there is
data to support this concern. All in all, the district court concluded
that the statements’ potential for unfair prejudice substantially out-
weighs their probative value. I cannot say that the court abused its
discretion in reaching this conclusion.
Judge King believes that the district court abused its discretion in
excluding the O.J. statements under Rule 403. I have great respect for
Judge King’s views on questions of evidence, but I respectfully dis-
agree with him in this instance. Judge King begins his Rule 403 dis-
cussion by concluding that Lentz’s O.J. statements "threaten[ed], in
substance, that ‘I’ll kill you and get away with it.’" Post at 12. The
district court was concerned that the jury would automatically jump
to the very same conclusion without any rational analysis. This
assessment by the district court is not contrary to reason. In addition,
I do not believe, as does Judge King, that the O.J. statements are nec-
essary to the government’s case. As I have already discussed, the gov-
ernment has a considerable amount of other evidence showing that
Lentz threatened Doris, that he said he might kill her, and that she
was afraid of him. Finally, Judge King appears to conclude that
Lentz’s O.J. statements cannot be excluded as unfairly prejudicial
under Rule 403 because any prejudice "is entirely self-inflicted;" in
other words, "he chose the words and he’s stuck with them." Post at
12. Even though Lentz himself used the words in question, the issue
of their admissibility must still be evaluated under Rule 403. See
United States v. Gartmon, 146 F.3d 1015, 1022-23 (D.C. Cir. 1998);
United States v. Yarns, 811 F.2d 454, 456 (8th Cir. 1987); United
States v. Qamar, 671 F.2d 732, 734-35 (2d Cir. 1982). Judge King’s
dissent confirms that the Rule 403 question was a close one for the
district court. But we give our district courts a wide berth to decide
questions of admissibility. For that reason, I do not believe that the
district court abused its discretion in keeping out the O.J. statements.
B.
We must also consider the district court’s determination that the
two "Jay did it" statements should also be excluded under Rule 403.
These are Doris’s statements to the two nurses to the effect that if
10 UNITED STATES v. LENTZ
anything happened to her, "Jay did it." First of all, as the district court
noted, the statements are not admissible to prove the matter asserted,
that is, if Doris was ever killed, Lentz would be the killer. On that
score the statements were simply speculation by Doris about what
might happen to her in the future. As the district court recognized, the
statements are probative of Doris’s fear of Lentz, but the government
has a wealth of evidence to prove that point. The district court con-
cluded that admission of the "Jay did it" statements would present a
real danger of unfair prejudice. A jury, hearing that the victim had
twice predicted her own demise at the hands of the defendant charged
with her kidnapping and murder, could be moved to decide the case
on sympathy and emotion. Accordingly, the district court did not
abuse its discretion in excluding these statements under Rule 403 on
the ground that their limited probative value was substantially out-
weighed by the danger of unfair prejudice.
III.
The court affirms the district court’s orders excluding the O.J.
statements and the "Jay did it" statements.
AFFIRMED
TRAXLER, Circuit Judge, concurring in the judgment:
I concur in the judgment affirming the district court’s exclusion of
Ms. Lentz’s hearsay statements, although not because I believe their
prejudicial effect outweighs their probative value under Fed. R. Evid.
403. Because I would hold that the statements, which are concededly
inadmissible under the hearsay rule at Fed. R. Evid. 802, are not
admissible under the exception contained in Fed. R. Evid. 804(b)(6),
I would not reach the Rule 403 issue at all.
The "forfeiture by wrongdoing" exception to the general prohibi-
tion against hearsay provides that, "if [a] declarant is unavailable as
a witness," then "[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" is "not
excluded by the hearsay rule." Fed. R. Evid. 804(b)(6). The govern-
UNITED STATES v. LENTZ 11
ment argues that because Lentz murdered Mrs. Lentz to prevent her
from testifying in an upcoming family court proceeding, her state-
ments are admissible in his trial for her murder under this exception.
I disagree.
Obviously, the "forfeiture by wrongdoing" exception allows for the
admission of witness statements in a proceeding if the witness was
murdered to prevent him or her from testifying in that same proceed-
ing. See United States v. Johnson, 219 F.3d 349, 356 (4th Cir. 2000)
(holding that the district court did not abuse its discretion in admitting
statements of a murder victim under Rule 804(b)(6) in defendant’s
trial for drug conspiracy and murder in aid of racketeering where the
defendant "murdered [the witness] at least in part to procure the
unavailability of the only witness to his murder of" another man).
Thus, for example, if Lentz murdered his wife to prevent her from tes-
tifying in their divorce and child custody proceedings, Mrs. Lentz’s
statements would be admissible in a family court proceeding pertain-
ing to their domestic issues (provided, of course, that the state has a
similar state evidentiary rule). Like the district court, however, I am
unwilling to extend the Rule 804(b)(6) exception to allow for the
wholesale introduction of hearsay statements made by a murder vic-
tim against the defendant in the federal trial for the witness’s murder
simply because the parties were involved in state court litigation at
the time of the alleged murder. Rather, I interpret the Rule 804(b)(6)
exception as being generally limited to the introduction of hearsay
statements in the proceeding at which the deceased was expected by
the assailant to testify.
Accordingly, I concur in a judgment to affirm the district court, but
for a different reason. I would affirm the district court’s exclusion of
the statements solely on the basis that the hearsay statements are not
admissible under the forfeiture by wrongdoing exception. Because the
government’s appeal is limited to the district court’s rulings under
Fed. R. Evid. 804(b)(6) and Fed. R. Evid. 403, I express no opinion
as to whether the statements might have been admissible under any
other exception to the hearsay rule.
12 UNITED STATES v. LENTZ
KING, Circuit Judge, concurring in part and dissenting in part:
While I agree with Judge Michael that the district court was within
its discretion in excluding the "Jay did it" statements under Rule 403,1
I would reverse the court’s exclusion of the O.J. statements. I would
remand to give the Government an opportunity to prove, by a prepon-
derance of the evidence, that Lentz "engaged . . . in wrongdoing that
was intended to, and did, procure the unavailability of [Doris] as a
witness" with respect to those statements. Fed. R. Evid. 804(b)(6).
Lentz himself chose to make reference to O.J. Simpson in his
threats to Doris. The O.J. statements — threatening, in substance, that
"I’ll kill you and get away with it" — are highly probative of Lentz’s
commission and concealment of Doris’s murder. They are plainly rel-
evant and necessary to the Government’s case; and to the extent that
they are prejudicial to Lentz’s defense, that prejudice is entirely self-
inflicted. On the Rule 403 issue, I would say, put most simply, that
"he chose the words and he’s stuck with them."2 To hold that a defen-
dant’s own threats are so egregiously prejudicial as to preclude their
admission against him at trial would create a perverse result: As
between two defendants who have made threats against the individu-
als in whose deaths they are subsequently charged, he who has made
the more odious statements can, by virtue of the very extremity of his
conduct, be shielded at trial from inferences deleterious to his case.
By contrast, the defendant whose threats were comparatively milder
may suffer the introduction of those statements against him. I would
hold that the district court abused its discretion in excluding the O.J.
statements under Rule 403.3
1
I also agree with Judge Michael’s recitation of the factual and proce-
dural underpinnings of this appeal, as set forth in Part I of his opinion.
2
Judge Michael is entirely correct that Lentz’s statements must be
evaluated under Rule 403. Ante at 9. My contention, however, is simply
that Lentz is entitled to no special protection by virtue of the outrageous-
ness of his conduct. Cf. United States v. Gartmon, 146 F.3d 1015, 1021
(D.C. Cir. 1998) ("Rule 403 does not provide a shield for defendants who
engage in outrageous acts, permitting only the crimes of Caspar Milque-
toasts to be described fully to a jury.").
3
If Doris were available to testify against her ex-husband in his trial for
attempted murder and kidnapping, I submit that no one could seriously
UNITED STATES v. LENTZ 13
Because I see the O.J. statements as not properly excludable under
Rule 403, I turn to whether those statements might be admissible
under the Rule 804(b)(6) "forfeiture by wrongdoing" exception to the
hearsay rule. While my friend Judge Traxler maintains that the forfei-
ture by wrongdoing exception is "generally limited to the introduction
of hearsay statements in the proceeding at which the deceased was
expected by the assailant to testify," ante at 11, I am unable to per-
ceive any such limitation. By its plain terms, Rule 804(b)(6) renders
admissible any statement that would otherwise be excluded under the
hearsay rule — i.e., the hearsay objection is forfeited — if the state-
ment is "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 forfeiture
by wrongdoing exception is couched in general terms, and those
terms do not confine the admissibility of a hearsay statement to the
particular proceeding for which the wrongdoer intended to render the
declarant unavailable.
Because Rule 804(b)(6) applies under the circumstances of this
case, and because the probative value of the O.J. statements is not
substantially outweighed by any danger of unfair prejudice, I would
vacate the exclusion of the O.J. statements. I would remand to accord
the Government an opportunity to prove, by a preponderance of the
evidence,4 that Lentz engaged in wrongdoing that was intended to,
and did, render Doris unavailable as a witness. See United States v.
Scott, 284 F.3d 758, 762 (7th Cir. 2002) (holding that trial court
should use preponderance of evidence analysis to make threshold
determination under Rule 804(b)(6) whether defendant engaged in
wrongdoing that was intended to, and did, render declarant unavail-
contend that Lentz’s threats against her would be so unfairly prejudicial
as to be inadmissible. And the only distinction here — that Doris is not
available to be placed on the witness stand and her testimony is now
hearsay — has (if Rule 804(b)(6) is satisfied) been forfeited by Lentz’s
wrongdoing.
4
In pursuing this effort before the trial court, the Government would
not be bound by the Rules of Evidence. See Fed. R. Evid. 104(a); cf.
Bourjaily v. United States, 483 U.S. 171, 181 (1987); Precision Piping
& Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 621
(4th Cir. 1991).
14 UNITED STATES v. LENTZ
able as witness); United States v. Dhinsa, 243 F.3d 635, 653-54 (2d
Cir.), cert. denied, 534 U.S. 897 (2001) (same); United States v.
Cherry, 217 F.3d 811, 815 (10th Cir. 2000) (same); United States v.
Emery, 186 F.3d 921, 927 (8th Cir. 1999) (same). If the Government
can make such a showing, it is entitled to avail itself of the forfeiture
by wrongdoing exception embodied in Rule 804(b)(6) and to use the
O.J. statements against Lentz in his trial.
With all respect to my distinguished colleagues, I dissent from the
panel’s judgment that the exclusion of the O.J. statements should be
sustained.