UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             GALLUP, ZOLPER, and MAGGS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Sergeant TODD R. MARCHESANO
                          United States Army, Appellant

                                    ARMY 20060388

                          21st Theater Support Command
                   Denise Lind and James L. Pohl, Military Judges
                   Colonel Scott W. Arnold, Staff Judge Advocate

For Appellant: Mr. William E. Cassara, Esquire (argued); Captain Sean F. Mangan,
JA; Mr. William E. Cassara, Esquire (on brief).

For Appellee: Captain Adam S. Kazin, JA (argued); Colonel John W. Miller II, JA;
Major Elizabeth G. Marotta, JA; Captain Todd Kutchenthal, JA; Captain Adam S.
Kazin, JA (on brief).

                                     2 October 2008
                              ------------------------------------
                                OPINION OF THE COURT
                              ------------------------------------

ZOLPER, Senior Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his plea, of indecent acts with a child, in violation of Article
134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934. The
panel sentenced appellant to a bad-conduct discharge, confinement for six months,
forfeiture of all pay and allowances, and reduction to Private E1.

       Appellant asserts four assignments of error; none merit relief, but one merits
discussion. Appellant, in pertinent part, claims his “conviction must be set aside
because the military judge abused her discretion by admitting uncharged misconduct
evidence purportedly showing that appellant sexually molested his daughter as
Military Rule of Evidence [hereinafter Mil. R. Evid.] 414 propensity evidence to
prove [the] charged indecent acts offense.” 1
1
 The Mil. R. Evid. 414 evidence was admitted through two hearsay statements
offered under Mil R. Evid. 807 and 803(4). Additionally, the military judge
determined appellant forfeited his right to confront the witness by acquiescing in
wrongdoing to procure her unavailability under Mil. R. Evid. 804(b)(6).
MARCHESANO – ARMY 20050291


       This case is a matter of first impression for this court in applying Mil. R.
Evid. 804(b)(6), the “forfeiture by wrongdoing” exception to the hearsay rule. It has
particular application in light of the Supreme Court’s recent decision in United
States v. Giles, 554 U.S. __, 128 S. Ct. 2678 (2008), wherein the Court addressed the
forfeiture by wrongdoing exception to the Confrontation Clause. In our analysis of
Mil. R. Evid. 804(b)(6), we answer three questions: (1) How should this court
interpret the phrase “acquiesced in wrongdoing” as described in Mil. R. Evid.
804(b)(6) given the Supreme Court’s recent decision; (2) Can the actions of another
in causing the unavailability of a witness under Mil. R. Evid. 804(b)(6) be imputed
to the accused; and (3) Under Mil. R. Evid. 804(b)(6), must the military judge find
an accused intended to cause the unavailability of the witness?

       We first review the general application and specific admissibility of hearsay
statements under the forfeiture by wrongdoing provision of Mil. R. Evid. 804(b)(6)
and hold that forfeiture by wrongdoing was not satisfied. 2 We next consider PM’s
(appellant’s daughter) statements under the applicable evidentiary hearsay rules
(Mil. R. Evid. 807 and 803(4)) before analyzing their admissibility under Mil. R.
Evid. 414. 3 Under the facts of this case, we hold the military judge erroneously
admitted PM’s hearsay statements to a friend under Mil. R. Evid. 807. However, we
find the error in admitting these statements did not materially prejudice appellant’s
substantial rights under Article 59(a), UCMJ. We find the military judge properly
admitted PM’s statements to a doctor under Mil. R. Evid. 803(4) and 414.

                                       FACTS

                                    Background

      Appellant was convicted of committing an indecent act on AK, the seven-



2
 A proper finding of forfeiture by wrongdoing may “extinguish[]” constitutional and
evidentiary hearsay challenges. Crawford v. Washington, 541 U.S. 36, 62 (2004).
3
  The federal circuits have used this method when analyzing the related issue of
hearsay evidence admitted under Fed. R. Evid. 404(b). See United States v. Oberle,
136 F.3d 1414, 1418 (10th Cir. 1998) (“Although the statements are party
admissions under [Fed. R. Evid.] 801(d) and thus not hearsay, they must
nevertheless also be analyzed for admissibility under Rule 404(b) because they
reveal or suggest prior criminal conduct.”); United States v. Godinez, 110 F.3d 448,
454-55 (7th Cir. 1997) (analyzing first whether statement constituted inadmissible
hearsay, then whether [Fed. R. Evid.] 404(b) precluded its admission); United States
v. Micke, 859 F.2d 473, 478-79 (7th Cir. 1988) (recognizing that testimony
recounting defendant’s statement qualified as party admission and was not hearsay,
but stating that “does not end our inquiry” before analyzing whether statement was
admissible under Fed. R. Evid. 404(b)).



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MARCHESANO – ARMY 20050291


year-old friend of appellant’s daughter, PM. 4 At trial, AK testified that she spent the
night, on 27 May 2005, at appellant’s house. AK set up a tent in appellant’s
backyard with PM, where the children played and eventually fell asleep. AK testified
that sometime during the night, appellant started to touch her in the area between her
navel and vaginal area and on her lower back, just above the buttocks. Appellant’s
touching consisted of moving his hand smoothly along her body in a soft, back and
forth fashion.

      After appellant touched her for a few seconds, AK rolled over on her side.
Appellant then took AK out of the tent and made her promise not to tell anyone he
touched her. She agreed not to tell anyone, and then she went into the house with
appellant where she slept on the couch. The next morning, AK told PM that
appellant touched her during the night. PM then said, “he touches [me] too . . . that
when he does that, it means that he’s going to do something.”

       Later that weekend, PM’s mother, made aware of AK’s and PM’s comments,
brought PM to the Landstuhl Hospital Emergency Room for examination and
treatment of possible child sexual abuse. At the hospital, an Army medical doctor,
Major Mark Rieker (Dr. Rieker), conducted a physical examination of PM. After the
physical examination, Dr. Rieker began questioning PM about the incident. PM told
Dr. Rieker that appellant sometimes touched her private area when taking her out of
the bath and drying her off. This touching sometimes lasted for more than a second
and it felt unusual.

       Prior to the panel being seated, the government discovered PM was not
available to testify at trial. At the government’s request a German subpoena was
issued to have PM appear, but her mother, Ms. Marchesano, refused to bring her to
court. Ms. Marchesano consulted a German attorney, Ms. Linn, who testified the
German subpoena could not be enforced against a family member to testify against a
parent. Appellant had joint custody of his daughter, but claimed his defense counsel
advised him not to get involved with the production of his daughter at trial.

                                   Pretrial Motions

       In an Article 39(a), UCMJ, session the military judge heard testimony
regarding PM’s proposed hearsay testimony and litigated its admissibility. The
military judge allowed PM’s statements to AK and Dr. Rieker, over defense
objection on Sixth Amendment, evidentiary hearsay, Mil. R. Evid. 414, and Mil. R.
Evid. 403 grounds. The military judge made initial factual findings.

      In relation to PM’s statements to AK, the military judge ruled:

4
  The panel found appellant guilty of the charged offense of indecent acts with a
child with excepted and substituted language: “except the words: caressing,
buttocks, pelvic, and vaginal area, substituting therefor the words: back part,
rubbing, front part below the navel above the knee.”


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MARCHESANO – ARMY 20050291



          One, [PM] has been subpoenaed to testify through the
          German government. . . . [PM] is not here. The
          government has exercised due diligence in attempting to
          secure the presence of [PM] and has been unable to secure
          [her] presence through process or by other reasonable
          means. [PM] is unavailable.

                 Two, the statements are not testimonial . . . . They
          were made by one 7-year child to another after a
          sleepover. There was no questioning by [AK] to elicit
          information. This scenario is not the functional equivalent
          of testimony under oath, such as an affidavit, custodial
          examination, deposition, confession, or prior testimony;
          thus the determination that must be made is whether the
          statements by [PM] to [AK] qualify under the residual
          hearsay rules, particularly, Military Rule of Evidence 807,
          residual hearsay. . . .

                 Three, the hearsay statements by [PM] were offered
          as evidence of two material facts. First, as evidence of a
          reason [AK] did not tell [her mother] that the accused
          touched her on 25 May[] 2005; and second, as evidence of
          similar crimes in child molestation cases under Military
          Rule of Evidence 414.

                Four, because [PM] is unavailable to testify, these
          statements to [AK] are more probative on both points than
          any other evidence the government can procure through
          reasonable means.

                 Five, the statements have equivalent circumstantial
          guarantees of trustworthiness to express hearsay
          statements made in Military Rule of Evidence 803 and
          804, based on the following: the statements were made by
          one 7-year-old child to another of similar age; they were
          spontaneously uttered in response to a remark by AK that
          she doesn’t like [PM’s] daddy, or the way he touches her,
          or words to that effect; there is no evidence of a motive
          for [PM] to lie, although, the girls don’t specify what type
          of touching they’re discussing, it can be inferred from the
          tenor of the conversation and the lack of questioning by
          [PM] that she understood the kind of touching [AK] was
          referring to; there is no evidence of abnormal mental state
          of [PM] . . . .




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MARCHESANO – ARMY 20050291


       In relation to PM’s statements to Dr. Rieker, the military judge ruled, in
pertinent part:

             Ms. Marchesano brought [PM] to the Landstuhl
             Emergency Room . . . for a medical examination after the
             allegations concerning [AK] were made known. He
             advised [PM] that he was a doctor or pediatrician and that
             he needed to ask her some questions and conduct an
             examination. When . . . Dr. Rieker questioned [PM], Mrs.
             Marchesano was also in the room. Dr. Rieker conducted a
             physical examination and found no signs of abuse. Dr.
             Rieker asked [PM] about her private areas and whether she
             had any secrets, and also asked if the accused had touched
             her. . . .

                    Two, although Dr. Rieker asked [PM] direct
             questions about whether the accused had touched her, the
             court[] finds that the statements were not testimonial . . . .
             [PM] was 7 years old at the time of the examination. Dr.
             Rieker told her he was conducting an examination of her
             at the time. [PM]’s responses were not focused, not
             factual assertions that one would expect with testimonial
             communications. [PM] was not telling a story or version
             of events, but responding and pulling back to questions
             about touching. The court finds that this is not the
             functional equivalent of testimony under oath, such as an
             affidavit, custodial examination, deposition, or prior
             testimony.

                    [T]he inquiry is whether [PM]’s statements fall
             within [Mil. R. Evid.] 803(4), a firmly rooted hearsay
             exception. The court finds that they do. [PM] knew that
             she was in the hospital Emergency Room being physically
             examined and questioned by the doctor. Her statements to
             Dr. Rieker describe the medical history and concern to the
             general nature of the cause that are reasonably pertinent to
             diagnosis and treatment. For the reasons outlined above,
             the court finds that the statements to Dr. Rieker are
             evidence of similar crimes in child molestation under
             [Mil. R. Evid.] 414.

     The military judge further addressed the admissibility of PM’s statements to
AK and Dr. Rieker under Mil. R. Evid. 414:

             Now, as far as the purpose of being introduced under [Mil.
             R. Evid.] 414, [United States v. Wright, 53 M.J. 476



                                           5
MARCHESANO – ARMY 20050291


             (C.A.A.F. 2000)], provides the analytical framework for
             evaluating the admissibility of evidence under . . . [Mil. R.
             Evid.] 414. . . . After considering the [Wright] factors, the
             evidence presented by the parties, and the arguments of
             counsel, the court finds by a preponderance of the
             evidence and concludes the following:

                    One, the government provided the defense the
             required advanced notice . . .;

                    Two, the accused is charged with one specification
             of indecent acts with a child, [AK], occurring on or about
             27 May, 2005;

                    Three, the proffered, uncharged evidence is
             evidence of the accused’s commission of similar indecent
             acts of sexual touching at about the same timeframe as
             against his daughter, [PM], who is approximately the same
             age as [AK]. Both the charged offense and the uncharged
             evidence involve acts allegedly occurring on the accused’s
             property.

                   Four, [Mil. R. Evid.] 414(a) unambiguously
             provides that at a court-martial in which the accused is
             charged with an offense of child molestation, evidence of
             the commission of one or more offenses of child
             molestation is admissible and may be considered for any
             bearing—for [its] bearing on any matter which is relevant;

             Five, the proffered evidence is admissible under [Mil. R.
             Evid.] 401 and 402 because it’s logically relevant to show
             the accused has a propensity to commit the charged
             indecent acts and to engage in nonconsensual sexual
             conduct with girls, approximately 7 years old in his
             home. 5

       Finally, the military judge notified counsel she would revisit the issue of
forfeiture by wrongdoing once she heard from the other witnesses. During a


5
 In addition, the military judge conducted a Mil. R. Evid. 403 balancing test and
found the “probative value [of the evidence] substantially outweighed [] the danger
of unfair prejudice, confusion of the issues, misleading the members, or by
consideration of undue delay, waste of time, or needless presentation of cumulative
evidence.” See United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) (applying a
Mil. R. Evid. 403 balancing test to evidence considered under Mil. R. Evid. 413).


                                           6
MARCHESANO – ARMY 20050291


subsequent Article 39(a), UCMJ, session, the military judge made the following
findings of fact and law:

            All right. Finally, we tabled yesterday the issue of
            whether the hearsay statements of [PM] to [AK] on or
            about 28 May 2005 and the hearsay statements of [PM] to
            Dr. Mark Rieker on or about 30 May 2005 were admissible
            under . . . 804(6) as forfeiture by wrongdoing.

            ...

                  The court makes the following factual findings with
            respect to whether these hearsay statements are admissible
            under 804(b)(6):

                   One, [PM] is [at trial eight] years old. She is the
            daughter of the accused . . . and Ms. Joy Marchesano. She
            is in Germany as a military dependant and lives off-post
            on the German economy with both parents.

                   Two, the government requested the German
            authorities issue a subpoena for [PM] to be present for
            trial on 2 and 3 May 2006. The subpoena was served on
            Ms. [] Marchesano prior to trial. Ms. Marchesano was
            aware of the subpoena and showed the subpoena to Ms.
            Sabrina Linn, an attorney who represents Ms. Marchesano
            and [PM]. Ms. Linn does not represent the accused.

                   Three, Ms. Marchesano told Ms. Linn and this court
            that she does not consent to [PM] testifying in court. She
            was evasive about the whereabouts of [PM]. Her
            testimony was that [PM] is staying with a friend of Ms.
            Marchesano and the accused, yet Ms. Marchesano does not
            know where this friend lives[.] [This] is not credible and
            evidence of Ms. Marchesano’s continued refusal to honor
            the subpoena and produce [PM] for trial[.]

                   Four, Ms. Linn testified and evidenced a hostile
            demeanor towards the court. Ms. Linn testified that under
            German law family members are not required to testify
            against other family members. The court makes no
            findings with respect to German law; however, the court
            does find there is no parent/child privilege under the
            Military Rules of Evidence. . . .




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MARCHESANO – ARMY 20050291


                 Five, Ms. Linn refused to answer the question of the
          court whether German law allows a parent to disregard a
          subpoena and not produce the child for trial. The court
          finds that Ms. Linn, Ms. Marchesano, and the accused
          were aware that [PM] had been subpoenaed for trial and
          that German law requires that the subpoena be honored
          and that neither Ms. Marchesano nor the accused produced
          [PM] for trial.

                Six, both the accused and Ms. Marchesano are the
          custodial parents of [PM] and both exercise parental
          control. Both were home on the evening of 1 May 2006
          with [PM]. The accused left the decision whether to
          produce [PM] for trial with Ms. Marchesano and made no
          attempt to influence her decision.

                 Seven, the accused was aware as of 1 May 2006 that
          the court was considering admitting hearsay statements of
          [PM] under Military Rule of Evidence 804(b)(6) as
          forfeiture by wrongdoing. He was aware that [PM] had
          been subpoenaed for trial. The accused did not produce
          [PM] for trial on 2 May or 3 May 2006, despite the fact
          that he had access to [PM] as [her] father—as her father in
          the same house, nor did he make any attempt to persuade
          Ms. Marchesano to honor the subpoena. The court finds
          that by this conduct, the accused engaged in wrongdoing
          that was intended to, and did produce the unavailability of
          [PM] as a witness.

                 Eight, the court further finds that Ms. Marchesano
          with the full acquiescence of the accused engaged in
          wrongdoing by violating the subpoena from the German
          authorities in failing to produce [PM] for trial. The court
          further finds that by this wrongdoing both the accused and
          Ms. Marchesano intended to and did procure the
          unavailability of [PM] as a witness.

                Nine, the intent of the accused to procure the
          unavailability of [PM] as a witness is corroborated by the
          accused’s refusal to give [his company commander]
          contact information for [PM] and [her mother] and his
          statement that he did not want her to contact them. The
          statements- - hearsay statements by [PM] to [AK] and Dr.
          Mark Rieker are admissible under Military Rule of
          Evidence 804(b)(6).




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MARCHESANO – ARMY 20050291


                              LAW and DISCUSSION

                                 Standard of Review

       This Court reviews evidentiary rulings on hearsay for an abuse of discretion.
United States v. Czachorowski, 66 M.J. 433, 434 (C.A.A.F. 2008) (citing United
States v. Dewrell, 55 M.J. 131, 137 (C.A.A.F. 2001)). Findings of fact are affirmed
unless they are clearly erroneous; conclusions of law are reviewed de novo. Id.
(citing United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)). Whether a
statement constitutes testimonial hearsay is a legal question we review de novo.
United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007).

                               Mil. R. Evid. 804(b)(6)

                                         Law

       In Giles, the Supreme Court held the forfeiture by wrongdoing exception to
the Confrontation Clause applies only where the defendant acted with the intent of
making the witness unavailable to testify at trial. 554 U.S. __, 128 S. Ct. at 2686-
88. 6 In that case, the defendant was charged with murdering his girlfriend.
Approximately three weeks prior to the murder, the victim told the police the
defendant had threatened to kill her. Over objection, the trial court allowed this
statement into evidence, holding appellant forfeited his right to confront the witness.
The Court disagreed, holding the trial judge failed to make a finding that appellant
committed the murder with the intent to make the witness unavailable. Giles, 554
U.S. __, 128 S. Ct. at 2692. 7

6
  The Sixth Amendment allows admission of a witness’s out-of-court testimonial
statements against a criminal defendant if the witness is present at trial for cross-
examination. See Crawford, 541 U.S. at 68. If the witness is unavailable, the
testimonial statements are admissible only if the defendant had a prior opportunity
to cross-examine. Id. The Court interpreted the Sixth Amendment as referring to
the right of confrontation as “admitting only those exceptions established at the time
of the founding.” See Giles, 554 U.S. __, 128 S. Ct. at 2682 (quoting Crawford, 541
U.S. at 54). The Court recognized two historical exceptions to the right of
confrontation: dying declarations and forfeiture by wrongdoing. Giles, 554 U.S. __,
128 S. Ct. at 2682-2683.
7
  Prior to Giles, the Supreme Court addressed the concept of “forfeiture by
wrongdoing” in Reynolds v. United States, 98 U.S. 145 (1878). In Reynolds, the
defendant was charged with bigamy and refused to divulge the whereabouts of his
second wife, thus interfering with the prosecutor’s attempt to subpoena her for a
trial. Over objection, the trial court allowed her previous testimony into evidence.
The Court affirmed the conviction holding the defendant forfeited his confrontation
rights since he was responsible for her absence. See id. at 158–161.



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MARCHESANO – ARMY 20050291


       In reaching this conclusion the Supreme Court refined the common law
principle of “forfeiture by wrongdoing,” stating it applied only where the
defendant’s conduct was “designed” to prevent testimony. Giles, 554 U.S. __, 128
S. Ct. at 2683. The defendant, therefore, must have “intended” to prevent testimony
before applying the “forfeiture by wrongdoing” principle in order to admit
statements without confrontation. Giles, 554 U.S. __, 128 S. Ct. at 2686. Although
the Court did not specify a particular procedure for determining whether the
principle applies, in dicta, the Court appeared to cite with approval the practice of
requiring an evidentiary hearing before admitting a witness’ statement over the
objection of an accused. Giles, 554 U.S. __, 128 S. Ct. at 2691 n.6.

       The common law doctrine of forfeiture by wrongdoing as addressed by the
Supreme Court in Giles was previously codified in Fed. R. Evid. 804(b)(6) and
promulgated in Mil. R. Evid. 804(b)(6). See Davis v. Washington, 547 U.S. 813, 833
(2006) (The evidentiary hearsay rule simply “codifie[d] the forfeiture doctrine.”).
Although in many respects the holding in Crawford has functionally separated the
constitutional and evidentiary hearsay concepts, the Court’s analysis of the
Confrontation Clause forfeiture by wrongdoing and Fed. R. Evid. 804(b)(6)
indicated the two are related. See Giles, 554 U.S. __, 128 S. Ct. at 2686 (“No case
or treatise that we have found, however, suggested that a defendant who committed
wrongdoing forfeited his confrontation rights but not his hearsay rights.”).

       Both Military Rule of Evidence 804(b)(6) and its federal counterpart are
broadly written: “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.” Although there is no discussion of this rule in the Manual
for Courts-Martial [hereinafter MCM], the advisory committee for Fed. R. Evid.
804(b)(6) noted the rule was instituted as a “prophylactic rule to deal with abhorrent
behavior which strikes at the heart of the system of justice.” Cf. MCM, United
States, Analysis of the Rules for Courts-Martial app. 22, at A22-59 (2005 ed.)
(“[M]ilitary evidentiary law should echo the civilian federal law to the extent
practicable.”). Similarly, the constitutional principle of forfeiture by wrongdoing is
an equitable doctrine based on the principle that “one who obtains the absence of a
witness by wrongdoing forfeits the constitutional right to confrontation.” Davis, 547
U.S. at 833.

      Though not an issue before the Supreme Court in Giles, Mil. R. Evid.
804(b)(6) and Fed. R. Evid. 804(b)(6) contain language not present in the common
law principle of forfeiture by wrongdoing, particularly the phrase “acquiesced in
wrongdoing.” See Giles, 554 U.S. __, 128 S. Ct. at 2683 (“[P]rocure” can also mean
“a defendant forfeits confrontation rights when he uses an intermediary for the
purpose of making a witness absent.”). While not defined under Mil. R. Evid.
804(b)(6), to “acquiesce” is otherwise defined as “to accept tacitly or passively; to
give implied consent to an act.” Black’s Law Dictionary 24 (8th ed. 2004); see also
Webster’s Unabridged Dictionary 18 (2nd ed. 2001) (“[T]he act or condition of
acquiescing or giving tacit assent; agreement or consent by silence or without



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MARCHESANO – ARMY 20050291


objection.”). In other words, “[a]ctive participation or engagement . . . is not
required.” See United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005).

       While military courts have not interpreted Rule 804(b)(6), the federal circuits
have addressed this rule. Most recently, the Fourth Circuit, in affirming a
defendant’s conviction for murder and conspiracy, upheld a ruling that admitted,
under Fed. R. Evid. 804(b)(6), a deceased declarant’s statement relating the
defendant’s boast of committing the murder. See Rivera, 412 F.3d at 567. The court
rejected the defendant’s argument he could not be responsible for the killing of a
witness which occurred while he was incarcerated, since “a defendant need only
tacitly assent to wrongdoing in order to trigger the Rule’s applicability.” Id.; see
also United States v. Thompson, 286 F.3d 950, 963-64 (7th Cir. 2002) (imputing co-
conspirators actions to defendant for purposes of Rule 804(b)(6)); United States v.
Mastrangelo, 693 F.2d 269, 273-74 (2d Cir. 1982) (“Bare knowledge of a plot to kill
the victim and a failure to give warning to appropriate authorities is sufficient to
constitute a waiver.”); Olson v. Green, 668 F.2d 421, 429 (8th Cir. 1982) (noting
that someone acting on defendant’s behalf to procure the unavailability of a witness
can operate to waive a defendant’s hearsay objection).

       Similarly, the Seventh Circuit in United States v. Scott, 284 F.3d 758, 765
(7th Cir. 2002), affirmed a defendant’s drug trafficking convictions, finding no error
in the admission of grand jury testimony that had been given by a coconspirator who
refused to testify at trial. The court found the defendant’s threats made through an
intermediary while he and the witness were confined in the same jail were sufficient
to constitute “acquiesc[ence].”

       In Scott, the Seventh Circuit also had an opportunity to define the term
“wrongdoing” under Fed. R. Evid. 804(b)(6). 284 F.3d at 763-64. The court first
observed that “wrongdoing” was not defined in Fed. R. Evid. 804(b)(6); however,
the advisory committee for the Federal Rules of Evidence instructed “wrongdoing”
need not consist of a criminal act. Cf. United States v. Reeves, 61 M.J. 108, 110
(C.A.A.F. 2005) (A wrongful act is “one done without legal justification or with
some sinister purpose.” (citation omitted)). The court then noted the term
“wrongfully” included concepts such as witness intimidation, coercion, undue
influence, and “threats of future retribution.” Scott, 284 F.3d at 763 (noting that
“causing a person not to testify at trial cannot be considered the ‘wrongdoing’ itself,
otherwise the word would be redundant”); see also Steele v. Taylor, 684 F.2d 1193,
1201 (6th Cir. 1982) (noting that wrongful conduct includes the use of force and
threats and “persuasion and control” by a defendant).

                                      Discussion

       We agree with the aforementioned federal circuits who have interpreted the
forfeiture by wrongdoing principle and adopt a definition of the terms “acquiesce[]”
and “wrongdoing” using their ordinary plain meaning. See Nix v. Heddon, 149 U.S.
304, 306 (1893). However, use of this principle still requires some “design” on the



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MARCHESANO – ARMY 20050291


part of appellant for the declarant to be deemed unavailable as a witness. Giles, 554
U.S. __, 128 S. Ct. at 2683. While a military judge may impute the wrongful actions
of a third-party to appellant, there must still be a determination at trial that appellant
intended the witness be absent through the wrongful act of another. Indeed, in Giles
the Supreme Court stated, “[t]he terms used to define the scope of the forfeiture rule
suggest that the exception applied only when the defendant engaged in conduct
designed to prevent the witness from testifying.” Giles, 554 U.S. __, 128 S. Ct. at
2684 (emphasis added). Finally, although not addressed by the military judge, we
affirmatively hold preponderance of the evidence is the proper standard of proof at
trial. See United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005); Scott, 284 F.3d
at 762; United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996). 8

       Having defined the phrase “acquiesced in wrongdoing,” the applicable intent
component under Mil. R. Evid. 804(b)(6), and the proper burden of proof at trial, we
need now determine if the military judge properly applied the rule in admitting PM’s
out of court statements. In situations where the government asserts an appellant
“acquiesced in wrongdoing,” we employ a modified form of the three-part test for
evaluating Fed. R. Evid. 804(b)(6) set forth in Scott, 284 F.3d at 762, with the
addition of another factor to take into account the holding in Giles: (1) the witness
was unavailable through the actions of another; (2) the act of another was wrongful
in procuring the unavailability of the witness; (3) the accused expressly or tacitly
accepted the wrongful actions of another; and (4) the accused did so with the intent
that the witness be unavailable. See also Gray, 405 F.3d at 243 (identifying a three-
part test for evaluating Fed. R. Evid. 804(b)(6)).

        In applying these factors, we find the military judge erred in considering
whether Ms. Marchesano’s conduct was wrongful, whether appellant’s actions were
sufficient to be considered tacit acceptance, and whether appellant had the intent to
procure PM’s unavailability. First, although we interpret the language
“wrongdoing” and “acquiesce[]” broadly, the limited facts of this case do not
sufficiently establish whether appellant’s “tacit acceptance” of his wife’s refusal to
honor the subpoena for PM’s appearance sufficiently demonstrated his “design” to
have PM unavailable for trial. This is of particular significance here because
appellant averred he simply removed himself from any involvement with the German
subpoena because of his possible criminal liability. Indeed, part of the military
judge’s findings were that “[t]he accused left the decision whether to produce [PM]
for trial with Ms. Marchesano and made no attempt to influence her decision.”


8
 We note Mil. R. Evid. 804(b)(6) prescribes no procedural steps or hearings to
determine if an accused forfeited his right to have the witness available. However,
in light of Giles and consistent with some of the federal circuits, it is advisable for a
military judge to hold an evidentiary hearing outside the presence of the panel and
find by a preponderance of the evidence that the accused procured or acquiesced in
making the witness unavailable. See United States v. Dhina, 243 F.3d 635 (2d Cir.
2001); Mastrangelo, 693 F.2d at 273.


                                            12
MARCHESANO – ARMY 20050291


       We also find the record does not sufficiently demonstrate appellant’s wife
wrongfully procured the unavailability of PM. The record clearly establishes Ms.
Marchesano refused to abide by the German subpoena as the custodial parent of PM.
However, the government never rebutted Ms. Marchesano’s contention that she
refused to present PM because German law does not require a witness to testify
against a family member. Indeed, Mrs. Linn, a German lawyer, testified at trial that
German law does not require Ms. Marchesano to abide by the subpoena. Even
though the government now presents some evidence on appeal that this was an
incorrect interpretation of German law, we find the military judge’s finding of fact
that “German law requires that the subpoena be honored” clearly erroneous and
unsupported by the evidence admitted at trial. In light of the record, it is possible
appellant’s wife merely did not wish for her young daughter to testify in court and
sought competent legal advice to determine if such an action was appropriate.
Accordingly, there is insufficient evidence of an illegal or nefarious purpose.

       Finally, presuming Ms. Marchesano wrongfully procured the unavailability of
PM, the prosecution failed to establish that appellant’s wife acted on his behalf or
appellant acquiesced his wife’s decision not to produce the child as a witness. The
government presented little evidence that appellant even tacitly accepted Ms.
Marchesano’s actions. Instead, the record suggests appellant completely removed
himself from the situation and permitted Ms. Marchesano to decide whether to abide
by the subpoena. We find there is a distinction between tacit acceptance and total
avoidance prior to commission of the wrongful act. Therefore, there is insufficient
factual basis to determine that appellant acquiesced in procuring the unavailability
of PM.

       As Giles held, a criminal defendant cannot waive the right to confront a
witness through participation in the commission of the crime itself unless he
possessed an intent to procure the unavailability for trial. 554 U.S. __, 128 S. Ct. at
2692. Similarly, a military judge must make an affirmative determination that an
accused had the intent to have a witness unavailable and that the third party’s
actions were wrongful to satisfy the evidentiary requirements of Mil. R. Evid.
804(b)(6). Under the facts of this case, we find the military judge abused her
discretion in finding appellant forfeited his right to have PM present.

                                  Mil. R. Evid. 807

                                         Law

      Since we find appellant did not forfeit his evidentiary and constitutional right
to confront a witness, we must now analyze whether the hearsay statements of PM
were properly admitted at trial. In general, an out-of-court statement made by
someone other than the testifying declarant offered in evidence to prove the truth of
the matter asserted is hearsay and is not admissible unless an exception applies. See
Mil. R. Evid. 801(d) and 802. The residual hearsay exception at Mil. R. Evid. 807 is
one such exception. Czachorowski, 66 M.J. at 434. The rule states:



                                          13
MARCHESANO – ARMY 20050291



             A statement not specifically covered by Rule 803 or 804
             but having equivalent circumstantial guarantees of
             trustworthiness, is not excluded by the hearsay rule, if the
             court determines that (A) the statement is offered as
             evidence of a material fact; (B) the statement is more
             probative on the point for which it is offered than other
             evidence which the proponent can procure through
             reasonable efforts; and (C) the general purposes of these
             rules and the interests of justice will best be served by
             admission of the statement into evidence.

Mil R. Evid. 807. 9

       Our superior court has established certain non-dispositive factors to determine
if there are sufficient circumstantial guarantees of trustworthiness. “These [factors]
may include, among other things: “(1) the mental state of the declarant; (2) the
spontaneity of the statement; (3) the use of suggestive questioning; and (4) whether
the statement can be corroborated.” United States v. Donaldson, 58 M.J. 477, 488
(C.A.A.F. 2003) (quoting United States v. Grant, 42 M.J. 340, 343-44 (C.A.A.F.
1995)). 10

                                      Discussion

       Under the totality of the circumstances, we find PM’s statements to AK do not
carry “equivalent circumstantial guarantees of trustworthiness.” Czachorowski, 66
M.J. at 435. Foremost, while the military judge held PM’s statements were
spontaneous, in fact, they were made in response to AK’s complaint of improper
touching and, therefore, were not completely unprompted. Second, PM’s statements
to AK—“daddy did it to me too” and “when he does that, it means that he’s going to
do something”—were too indistinct and vague to be trustworthy. The statements
provided no time, place, context, or even direct declaration of what appellant was
alleged to have done. Indeed, during the Article 39(a), UCMJ, session it was
evident the government was uncertain about the precise language and vernacular of
the statements. See United States v. Pablo, 53 M.J. 356, 362 (C.A.A.F. 2000)
(“When young children, more than other victims, complain of abuse, there is a
greater need for evidence that either corroborates or negates the victim’s version of
9
  See generally Czachorowski, 66 M.J. at 434 n.3 (citing Whorton v. Bockting, 549
U.S. 406 (2007)) (“Regardless of whether the evidence at issue is testimonial in
nature, admission at trial still depends on compliance with the rules of evidence.”).
10
  The Supreme Court identified the following factors for determining
trustworthiness in cases involving child witnesses prior to Crawford: (1)
spontaneity and consistent repetition of the statement; (2) mental state of the
declarant; (3) use of terminology expected of a child witness; and (4) lack of motive
to fabricate. Idaho v. Wright, 497 U.S. 805, 821 (1990).


                                          14
MARCHESANO – ARMY 20050291


the abuse. Child victims are easily attacked and often easily confused with
peripheral details.”).

       Finally, as the military judge noted, PM’s statements were ultimately
introduced through the “complaining witness [AK].” While we have no reason to
doubt the truthfulness of AK, ultimately the veracity of an alleged victim is of
paramount importance at a criminal proceeding. We are unconvinced by the military
judge’s finding that a complaining witness would have no reason to lie. Under the
facts of this case, we find the potential motivation of the testifying witness is a
relevant factor for consideration of Mil. R. Evid. 807.

       The legislative history of the residual hearsay exception indicates that the
exception should be used “very rarely, and only in exceptional circumstances.”
United States v. Kelley, 45 M.J. 275, 280 (C.A.A.F. 1996) (quotation marks and
citations omitted); see also Czachorowski, 66 M.J. at 435 n.6. In this case, the
military judge erred in admitting the hearsay statements because they lacked
sufficient “circumstantial guarantees of trustworthiness.” Id. We hold that the
military judge abused her discretion in admitting PM’s testimony under the residual
exception to the hearsay rule. 11

                                Mil. R. Evid. 803(4)

                                        Law

       Under Mil. R. Evid. 803(4), certain hearsay statements made to medical
personnel are admissible even if the witness is otherwise available. See United
States v. Rodriguez-Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006) (hearsay testimony of
child victim through a doctor was properly admitted at trial under Mil. R. Evid.
803(4) even though the interview was initiated by the trial counsel). Such
statements include: “Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment.” Mil. R. Evid.
803(4); see also United States v. Cucuzzella, 66 M.J. 57, 62 (C.A.A.F. 2008)
(statements made to a nurse and social worker were properly admitted under Mil. R.
Evid 803(4)).

      To qualify for this hearsay exception, two conditions must be met: “first, the
statement must be made for purposes of medical diagnosis or treatment; and second,

11
  We agree, however, with the military judge that PM’s statements to AK were not
testimonial: “[It was] made by one 7-year child to another after a sleepover. There
was no questioning by [AK] to elicit information. This scenario is not the functional
equivalent of testimony under oath, such as an affidavit, custodial examination,
deposition, confession, or prior testimony.”



                                         15
MARCHESANO – ARMY 20050291


the patient must make the statement with some expectation of receiving medical
benefit from the medical diagnosis or treatment that is being sought.” United States
v. Williamson, 26 M.J. 115, 118 (C.M.A. 1988) (quotation marks and citation
omitted). 12 Cases of child sexual abuse have presented particular challenges to our
courts when analyzing the expectations of very young children. While our superior
court has acknowledged there may be some relaxation of the required proof to
establish admissibility where a child is being treated, the mere fact a child is
involved does not eliminate the need to meet both prongs. See United States v.
Faciane, 40 M.J. 399, 403 (C.M.A. 1994)) (“[E]ven when children are involved, ‘the
facts and circumstances must support a finding that both prongs of the test are met.’”
(quoting Williamson, 26 M.J. at 118)).

                                      Discussion

       In this case, the military judge did not abuse her discretion in finding PM’s
statements to Dr. Rieker were made for the purpose of medical diagnosis. See
Kelley, 45 M.J. at 280. There is ample evidence that PM understood Dr. Rieker was
a doctor and the examination was for the purpose of receiving medical treatment.
Although Dr. Rieker was dressed in civilian clothing during his interview with PM,
he did explain to PM that he was a doctor and his questioning was part of a medical
examination. Indeed, Dr. Rieker testified, “The most important thing that I do is
evaluate the patient’s medical health and to determine the patient’s safety and if
there are any medical problems that have come about because of what [] happened.”

       In the context presented it is also apparent PM understood she was to receive
medical treatment. PM was brought to the Landstuhl Emergency Room by her
mother where she was told a doctor would conduct a medical examination. Doctor
Rieker proceeded to ask PM questions about her medical history and performed a
physical examination, which is consistent with how a normal medical examination
would be conducted. See United States v. Hollis, 57 M.J. 74, 79-81 (C.A.A.F. 2002)
(In conducting an analysis of a child-victim’s expectation when receiving medical
treatment, courts can look beyond the testimony of the child and consider the
testimony of the treating care provider and others who explained the purpose of the
meeting with the provider).

      Based upon the totality of the evidence, we do not find the military judge
abused her discretion in ruling on this issue and the declarant would have believed


12
  “The rationale for Mil. R. Evid. 803(4) is the self-interested motivation to speak
the truth to a treating physician or an individual in the mental health field in order to
receive proper care and the necessity of the statement for a diagnosis or treatment.”
United States v. Quigley, 35 M.J. 345, 347 (C.M.A. 1992). “[A]n individual seeking
relief from a medical problem has incentive to make accurate statements.” MCM,
United States, Analysis of the Rules for Courts-Martial app. 22, at A22-53 (2005
ed.).


                                           16
MARCHESANO – ARMY 20050291


she was there for medical treatment. 13 PM’s statements to Dr. Rieker were properly
admitted under Mil. R. Evid. 803(4).

                                  Mil. R. Evid. 414

                                         Law

      While PM’s statement to Dr. Rieker did not violate Mil. R. Evid. 803(4), we
must also analyze its admissibility under Mil. R. Evid. 414. Military Rule of
Evidence 414(a) provides that “[i]n a court-martial in which the accused is charged
with an offense of child molestation, evidence of the accused’s commission of one
or more offenses of child molestation is admissible and may be considered for its
bearing on any matter to which it is relevant.” Military Rules of Evidence 413 and
414 “are essentially the same in substance, the analysis for proper admission of
evidence under either should be the same.” Dewrell, 55 M.J. at 138 n.4.

       Before admitting evidence of other sexual acts under Mil. R. Evid. 414, the
military judge must make three threshold findings: (1) that the accused is charged
with an act of child molestation as defined by Mil. R. Evid. 414(a); (2) that the
proffered evidence is evidence of his commission of another offense of child
molestation as defined by the Rule; and (3) the evidence is relevant under Military
401 and Military 402. See United States v. Wright, 53 M.J. 476, 482 (C.A.A.F.
2000) (requiring certain threshold findings before admitting evidence under Mil. R.
Evid. 413).

       The military judge must also conduct a Mil. R. Evid. 403 balancing analysis,
to which the following nonexhaustive list of factors is relevant: “[s]trength of proof
of prior act -- conviction versus gossip; probative weight of evidence; potential for
less prejudicial evidence; distraction of factfinder; and time needed for proof of
prior conduct . . . temporal proximity; frequency of the acts; presence or lack of
intervening circumstances; and relationship between the parties.” Wright, 53 M.J. at
482 (citations omitted).




13
  Appellant does not assert on appeal the admission of PM’s statement to Dr. Rieker
violates his Sixth Amendment right to confrontation. We agree with the military
judge at trial, PM’s statements to Dr. Rieker were not made in response to any law
enforcement or prosecutorial inquiry and the primary purpose was not to produce
evidence with an “eye toward trial.” As stated in our discussion of Mil. R. Evid.
803(4), no objective witness would reasonably believe PM’s statements to Dr.
Rieker were intended “to preserve past facts for a criminal trial” and instead were
simply a medical examination to determine if there was a physical injury. See
United States v. Gardinier, 65 M.J. 60, 63 (C.A.A.F. 2007). Accordingly, PM’s
statements to Dr. Rieker are nontestimonial.


                                          17
MARCHESANO – ARMY 20050291


                                      Discussion

       Under the Wright factors, we find the evidence of uncharged misconduct
properly admitted under Mil. R. Evid. 414. There was evidence, in the form of
testimony by Dr. Rieker, that appellant had committed the other acts of child
molestation and there were no significant intervening circumstances between the
charged and uncharged acts. 14 As the military judge ruled: “[the] proffered,
uncharged evidence [was] evidence of the accused’s commission of similar indecent
acts of sexual touching at the same timeframe as against his daughter, [PM], who is
approximately the same age as [AK]. Both the charged offense and the uncharged
evidence involve acts allegedly occurring on the accused’s property.”

      Military Rule of Evidence 414 reflects a presumption that other acts of child
molestation constitute relevant evidence of predisposition to commit the charged
offense. Similarly, in this case we find the evidence is relevant to demonstrate
appellant’s propensity to commit the charged offense of indecent acts with AK under
Mil. R. Evid. 401, 402, and 414. The military judge clearly found that the probative
value of PM’s hearsay testimony outweighed any prejudicial effect, as required
under Mil. R. Evid. 403. Therefore, PM’s statements to Dr. Rieker were properly
admitted under Mil. R. Evid. 414.

                                      Prejudice

                                         Law

       Since the military judge abused her discretion by admitting PM’s statements
to AK into evidence in violation of Mil. R. Evid. 807, we must now determine
whether appellant suffered any prejudice as a result of the inadmissible testimony.
See Article 59(a), UCMJ. “Whether an error, constitutional or otherwise, was
harmless, is a question of law that we review de novo. . . . For nonconstitutional
errors, the Government must demonstrate that the error did not have a substantial
influence on the findings.” United States v. Hall, 66 M.J. 53 (C.A.A.F. 2008);
United States v. Walker, 57 M.J. 174, 178 (C.A.A.F. 2002) (citing Kotteakos v.
United States, 328 U.S. 750, 765 (1946)).

       We analyze claims of prejudice from an evidentiary ruling by weighing four
factors: “(1) the strength of the Government’s case, (2) the strength of the defense
case, (3) the materiality of the evidence in question, and (4) the quality of the
evidence in question. We apply the same four-pronged test for erroneous admission


14
  Although appellant was ultimately convicted of an offense other than an “act of
child molestation” he was in fact charged with such an offense under Mil. R. Evid.
414(a). See footnote 3, supra; see also United States v. Schroder, 65 M.J. 49, 54
(C.A.A.F. 2007) (it is irrelevant that appellant was not convicted of an act of “child
molestation,” because he is charged with a qualifying act).


                                          18
MARCHESANO – ARMY 20050291


of government evidence as for erroneous exclusion of defense evidence.” United
States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999) (citations omitted).

                                      Discussion

      Applying the factors set forth in Kerr, we find the erroneously admitted
evidence did not have a substantial influence on the finding of guilty. In addition,
disregarding the improperly admitted evidence, we are convinced of appellant’s guilt
beyond a reasonable doubt. See United States v. Turner, 25 M.J. 324, 324-25
(C.M.A. 1987).

        Even without PM’s statements to AK, the government’s case was strong. AK,
who was seven years old at the time of the offense, was able to articulate the
location and extent to which appellant indecently touched her and there was no
obvious reason for AK to make-up the allegation. AK immediately reported the
alleged offense and her father, Captain (CPT) JK, verified the immediate reporting
at trial. In addition to AK’s testimony, the government presented the properly
admitted Mil. R. Evid. 414 testimony of Dr. Rieker. Doctor Rieker testified
appellant committed similar acts of sexual misconduct with his daughter, PM, in the
same house.

       In contrast, the defense case was markedly less substantial. The defense rested
without presenting any evidence on the merits. They presented no witnesses,
physical evidence, or character witnesses to rebut the testimony of AK. Moreover,
the veracity, credibility, and recollection of the other government witnesses were not
effectively rebutted.

       As to the materiality and quality of the improperly admitted evidence, we
conclude the prejudicial effect of PM’s hearsay statement to AK was minimal. We
find the importance of PM’s statements to AK to be of little consequence,
particularly considering the underlying conduct was introduced through the
testimony of Dr. Rieker. PM’s statement to AK was mentioned only once during the
Government’s case-in-chief and was not a focus of the trial counsel’s argument
during closing. The statement had no major significance in the prosecution of the
case against appellant.

       Finally, we note a limiting instruction given by the military judge precluded
the members from considering this evidence on any issue other than appellant’s
propensity to engage in child molestation or “any matter to which it is relevant in
relation to the charged offense.” In addition, the military judge instructed the
members “[could not] convict the accused merely because you believe the accused
committed this [other sexual assault] offense or solely because you believe he has a
propensity to engage in child molestation,” and that the members “may not use [Mil.
R. Evid. 414] evidence as a substitute for [a findings of guilty] . . . or to overcome a
failure of proof in the government’s case . . . .” See United States v. Dacosta, 63
M.J. 575, 583 (Army Ct. Crim. App. 2006); see also Dep’t of the Army, Pamphlet



                                           19
MARCHESANO – ARMY 20050291


27-9, Legal Services, Military Judges Benchbook ch. 7, para. 7-13-1 (2005). We
conclude, therefore, this error was harmless and had no substantial prejudicial
impact on appellant’s rights. See Article 59(a), UCMJ.

                                   CONCLUSION

       In answering our three Mil. R. Evid. 804(b)(6) questions, we hold: (1) this
court adopts a definition of the terms “acquiesce[]” and “wrongdoing” using their
ordinary plain meaning; (2) courts can impute the actions of another to the accused
in causing the unavailability of a witness; and (3) the military judge must find an
accused intended to cause the unavailability of the witness and we provide a four-
part test for this determination. On consideration of the entire record, including the
assignments of error and matters personally asserted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the findings of guilty and the
sentence are affirmed.

      Senior Judge GALLUP and Judge MAGGS ∗ concur.

                                               FOR
                                                FORTHE
                                                   THE COURT:
                                                       COURT:




                                                MALCOLM H. SQUIRES,
                                               MALCOLM         SQUIRES,JR.
                                                                        JR.
                                                Clerk of
                                               Clerk  of Court
                                                         Court




∗
 Judge Maggs took final action on this case prior to his permanent change of duty
station.


                                          20
