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United States v. Ochoa, 229 F.3d 631, 637-638 (7th Cir. 2000) (upholding trial court's admission of co-conspirator McLaughlin's out-of-court statements because the co-conspirator was unavailable for purposes of the....For purposes of the hearsay exceptions created by Federal Rule of Evidence 804 or a comparable State rule a declarant is "unavailable" within the meaning of Rule 804(a) or a comparable State rule if the declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4) of Rule 804(b) or a comparable State rule, the declarant's attendance or testimony) by process or other reasonable means; but a declarant is not "unavailable" if such exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

Cf. Roshan v. Fard, 705 F.2d 102, 104-106 (4th Cir. 1983) (vacating judgment in a civil action where defendant was found guilty of assault and battery because the trial court erred in excluding evidence of defendant's role in plaintiff's conviction on serious drug charges where it was offered to...The prohibition against circumstantial use of character -- the use of character, propensity, or disposition to show conduct on a particular occasion -- is inapplicable in trials of civil actions.

United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987) (upholding trial court's exclusion of testimony about accused's past official conduct in matters unrelated to ITC because "extortion or refraining from extortion is not a semi-automatic act and does not constitute habit." ).If behavior is largely volitional rather than semi-volitional or semi-automatic, it is hot habit.