dissenting in part.
I must respectfully dissent from the principal holdings in the majority opinion based on an extension of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), and the suggested application of Fed.R.Evid. 804(b)(6). From them, the majority finds a waiver of the constitutional right to confrontation and the hearsay rule. In my view the Order of the District Judge denying admission of the hearsay statements of the unavailable witness, Lurks, was sound and properly rejected the government’s attempt at an expansive view of Pinkerton and an unwarranted interpretation of the new waiver-by-misconduct Rule 804(b)(6). I do, however, agree with the government that a remand be made in order that the district court may consider whether defendant Teresa Price may have acquiesced in the murder of Lurks so that her misconduct would make Lurks’s statements admissible as to her, though he is unavailable to testify and be cross-examined.
The Order of the District Judge, pp. 9-10, points out that the government argues it should be allowed to introduce oral statements of the unavailable witness, Lurks, against all defendants because by their securing the absence of Lurks and eliminating him as a witness, the defendants waived all confrontation rights and hearsay objections they might otherwise have, apparently relying on its expansive view of Pinkerton and the waiver-by-misconduct provisions of Rule 804(b)(6). The Order notes further that the government argues that the defendants as co-eonspira-tors would be criminally liable for the murder of Lurks and that, as a result, “they too, by virtue of being a part of the drug conspiracy, have waived their right to confrontation of the deceased witness.” Order at 10.
The Order finds, however, that there is “absolutely no evidence that [defendants Cherry, Gibbs and Parker] had actual knowledge of, agreed to or participated in the murder of Ebon Sekou Lurks.” Order at 17. The Order notes that the government argues that even if there is insufficient evidence of actual participation by these three defendants in the murder, “they still have waived their right to confrontation by the mere fact they are members of the drug conspiracy.” Id. at 17. The Order says the government argues *823that these three defendants waived their confrontation right “because it was reasonably foreseeable to them Joshua Price could murder a witness in order to protect the drug distribution operation.” Id. at 18.
The District Judge found, Order at 18, that the mere fact that these defendants may have participated in the drug conspiracy did not constitute a waiver of their constitutional confrontation rights with respect to the admission of out-of-court statements, citing U.S. v. White, 838 F.Supp. 618 (D.D.C.1993), aff'd, 116 F.3d 903 (D.C.Cir.1997). The Order below pointed to the following reasoning in White, which is also persuasive to me:
“Mere failure to prevent the murder, or mere participation in the alleged drug conspiracy at the heart of this case, must surely be insufficient to constitute a waiver of a defendant’s constitutional confrontation rights. [838 F.Supp. at 623.]”
The judge’s Order cited also Olson v. Green, 668 F.2d 421, 429 (8th Cir.), cert. denied, 456 U.S. 1009, 102 S.Ct. 2303, 73 L.Ed.2d 1305 (1982). In Olson, the 8th Circuit held that the right to confront witnesses is a constitutional right personal to the accused and that only the defendant or someone acting on his behalf may waive or forfeit that constitutional right. Id. at 429.
I agree with the cogent reasoning of the District Judge here that “[t]o say a defendant has waived [his right under the confrontation clause] merely because of his participation in a drug conspiracy is too expansive and goes against the rule of fundamental fairness.” Order at 19. The conclusion of the District Judge is buttressed by the long standing principle restated in Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966):
“There is a presumption against the waiver of constitutional rights ... and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461.” (internal citation omitted).
In sum, I agree with the ruling of the District Judge that as to defendants Michelle Cherry, LaDonna Gibbs, and Sonya Parker, the government’s motion to admit the out-of-court statements of Lurks should be denied. Order at 17, 20. However, I am in agreement with the government that before a final evidentiary ruling as to defendant Teresa Price, there should be a remand to determine whether under Rule 804(b)(6), Price “acquiesced” in the murder of Lurks. The government suggests that apart from Pinkerton, it was error not to consider whether Price acquiesced in Lurks’s murder which allegedly was intended to and did procure his unavailability. I agree that our remand should call for findings on the issue of such alleged acquiescence by defendant Teresa Price.