                         UNITED STATES, Appellee

                                         v.

                  David A. CZACHOROWSKI, Lieutenant
                         U.S. Navy, Appellant

                                  No. 07-0379
                        Crim. App. No. 200400735

       United States Court of Appeals for the Armed Forces

                          Argued March 18, 2008

                           Decided July 9, 2008

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER, J., filed a separate
opinion concurring in part and in the result. RYAN, J., filed a
dissent.

                                     Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Lieutenant W.
Scott Stoebner, JAGC, USN (on brief); Lieutenant Darrin W. S.
Mackinnon, JAGC, USN.

For Appellee: Captain Roger E. Mattioli, USMC (argued);
Commander Paul C. LeBlanc, JAGC, USN (on brief).

Amicus Curiae for Appellant: Angela Desaulniers (law student)
(argued); Timothy Litka, Esq. (supervising attorney) (on brief)
-- for the Catholic University of America, Columbus School of
Law.

Military Judge:    Nels Kelstrom


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Czachorowski, No. 07-0379/NA


     Judge STUCKY delivered the opinion of the Court.

     We granted Appellant’s petition to determine whether the

military judge abused his discretion when he admitted into

evidence the victim’s out-of-court statements accusing her

father of indecent acts over a defense objection that admission

violated Military Rule of Evidence (M.R.E.) 8071 and the Sixth

Amendment to the Constitution.   We hold that, on the facts of

this case, the military judge improperly admitted the testimony

and, accordingly, reverse the decision of the United States

Navy-Marine Corps Court of Criminal Appeals.2

                                 I.

     Appellant allegedly digitally penetrated his four-year-old

daughter, AAC, on several occasions.   On January 11, 2002, after

one such incident, AAC stated to her mother that “Daddy sticks

1
  Pursuant to the June 1999 Amendments to the Military Rules of
Evidence, M.R.E. 803(24) and M.R.E. 804(b)(5) were combined and
promulgated as M.R.E. 807. 2 Stephen A. Saltzburg et al.,
Military Rules of Evidence Manual § 807.02[1] & n.1 (6th ed.
2006). The change did not alter the meaning or application of
the residual hearsay exception. Id. Similarly, Federal Rules
of Evidence (Fed. R. Evid.) 803(24) was consolidated with the
other residual hearsay exception, Fed. R. Evid. 804(b)(5), into
Fed. R. Evid. 807. “The text was not altered in any material
way because ‘no change in meaning was intended.’” United States
v. Brothers Constr. Co. of Ohio, 219 F.3d 300, 309 n.2 (4th Cir.
2000) (quoting Fed. R. Evid. 807 advisory committee’s note).
2
  Oral argument in this case was heard at The Catholic University
of America, Columbus School of Law, Washington, D.C., as part of
the Court’s “Project Outreach.” See United States v. Mahoney,
58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was
developed as part of a public awareness program to demonstrate



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United States v. Czachorowski, No. 07-0379/NA


his finger in my pookie.”    Appellant denied doing “anything to

her.”    An argument with his wife erupted, followed by Mrs.

Czachorowski’s reaching for the phone to call her parents, Jean

and Vance Fisher, to relay the story.      During this conversation,

Mrs. Fisher apparently heard AAC say, “Daddy stuck his finger in

my pookie.”

        The child’s statements, as relayed to Mrs. Czachorowski and

overheard by the Fishers, formed the basis of the Government’s

case.    According to trial counsel, AAC was interviewed three

times about her allegations and her “memory fell off

significantly [after] each interview” until she could not

remember the events at all.    As such, the Government sought to

introduce AAC’s statements made to her mother and overheard by

her grandparents at trial as excited utterances under M.R.E.

803(2).    Defense counsel objected and the military judge agreed,

finding that the event that caused the stress was too remote in

time to permit an excited utterance exception.      The Government

then alternatively moved to introduce the statements under the

residual hearsay exception of M.R.E. 807, prompting the military

judge to hold as follows:

        I believe this testimony   is admissible under M.R.E.
        807, and I’m so ruling.    I believe the requirements of
        the rule have been met.    I’m looking at the declarant,
        the hearsay declarant in   this case, [AAC]. I’m


the operation of a federal court of appeals and the military
justice system.

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United States v. Czachorowski, No. 07-0379/NA


     looking at her emotional state at the time, the
     spontaneity of the statement, the lack of any possible
     motive to fabricate, and I believe the interest of
     justice and the purpose of these rules require
     admissibility.

     In admitting the statements under M.R.E. 807, the military

judge also held AAC unavailable to testify, stating that “[t]he

child apparently is, for whatever reason, unable to come into

this courtroom to provide testimony regarding” her accusation.

Trial counsel had previously stated that AAC did “not recall”

and “simply d[id]n’t remember,” and based on that proffer, the

military judge concluded as follows:   “She doesn’t remember

it -- I have no clue why.   But, in any event, she is unavailable

for that purpose.”   The military judge then permitted Mrs.

Czachorowski and the Fishers to testify as to AAC’s statements.

     Based, in large part, on that evidence, the military judge,

sitting as a general court-martial, convicted Appellant of one

specification of indecent acts with AAC, in violation of Article

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934

(2000).   The sentence adjudged consisted of a dismissal,

confinement for three years, and forfeiture of all pay and

allowances, but the convening authority disapproved the

forfeitures.   In upholding the conviction, the Court of Criminal

Appeals affirmed the sentence as approved by the convening

authority.   United States v. Czachorowski, No. NMCCA 200400735

(N-M. Ct. Crim. App. Jan. 23, 2007) (unpublished).


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United States v. Czachorowski, No. 07-0379/NA


                               II.

     Appellant argues that the military judge’s decision to

admit AAC’s hearsay statements violated M.R.E. 807 and

Appellant’s Sixth Amendment confrontation right.   We review the

ruling with regard to M.R.E. 807 for an abuse of discretion.3

United States v. Dewrell, 55 M.J. 131, 137 (C.A.A.F. 2001)

(citing United States v. Acton, 38 M.J. 330, 332 (C.M.A. 1993)).

Findings of fact are affirmed unless they are clearly erroneous;

conclusions of law are reviewed de novo.   United States v.

Rader, 65 M.J. 30, 32 (C.A.A.F. 2007) (citing United States v.

Flores, 64 M.J. 451 (C.A.A.F. 2007)).

     We find that on the facts of this case, the Government

failed to establish that the admitted hearsay was more probative

than other reasonably available evidence, thus rendering the

military judge’s decision to admit AAC’s out-of-court statements

through Mrs. Czachorowski’s and the Fishers’ testimony an abuse

of discretion.


3
  Regardless of whether the evidence at issue is testimonial in
nature, admission at trial still depends on compliance with the
rules of evidence. See Whorton v. Bockting, 127 S. Ct. 1173,
1183 (2007) (suggesting that since under “Crawford [v.
Washington, 541 U.S. 36 (2004)] . . . the Confrontation Clause
has no application to [nontestimonial] statements and therefore
permits their admission even if they lack indicia of
reliability,” the only other bar to their admission is the rules
of evidence). As such, and because we hold that admission of
AAC’s testimony violated M.R.E. 807, we need not reach
Appellant’s Sixth Amendment claim.



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United States v. Czachorowski, No. 07-0379/NA


                                A.

     As a threshold matter, Appellant argues that the Government

failed to provide advance notice of its intention to seek

admission of AAC’s out-of-court statements under M.R.E. 807, in

violation of the notice requirement of that rule.   We disagree.

     M.R.E. 807 requires, in pertinent part, that

     a statement may not be admitted under this exception
     unless the proponent of it makes known to the adverse
     party sufficiently in advance of the trial or hearing
     to provide the adverse party with a fair opportunity
     to prepare to meet it, the proponent’s intention to
     offer the statement and the particulars of it,
     including the name and address of the declarant.

M.R.E. 807.   Trial counsel originally sought admission of this

evidence as an excited utterance under M.R.E. 803(2).   The

military judge sustained a defense objection to admission under

M.R.E. 803(2) because AAC made the statement far too temporally

remote from the alleged activity.    Trial counsel then sought

admission through the residual hearsay exception.

     Trial counsel gave no formal notice, but defense counsel

admitted that he had known about the statement, and trial

counsel’s intent to seek admission of those statements, since

the case’s inception.   The military judge held that Appellant

had a fair opportunity to prepare to confront the statement in

advance of trial and admitted the evidence.

     There exists a split among the Article III courts of

appeals on the nature of notice required.   Some circuits look to


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United States v. Czachorowski, No. 07-0379/NA


the legislative history of M.R.E. 807’s federal analog to argue

that formal, pretrial notice is a prerequisite for admission

under the residual hearsay exception.4   Other circuits have

adopted a more flexible approach.5   We are persuaded by the

latter view.   A formal notice requirement –- that is, oral or

written notification of the intended use of M.R.E. 807 -- is

clearly absent from the rule.   The rule does require the

proponent to give (1) advance notice (2) of the statements (3)

to allow the adverse party to challenge the statements’

4
  See, e.g., United States v. Ruffin, 575 F.2d 346, 357-58 (2d
Cir. 1978) (requiring formal, pretrial advance notice based on
evidence of the intent of Congress, where the lead sponsor of
the legislation stated: “‘We met with opposition [on the
requirement of advance notice.] There were amendments offered
that would let them do this right on into trial. But we thought
the requirement should stop prior to trial and they would have
to give notice before trial. That is how we sought to protect
them.’” (quoting 120 Cong. Rec. H12256 (daily ed. Dec. 18, 1974)
(remarks of Rep. William L. Hungate, Chairman, H. Subcomm. on
Criminal Justice) (interpolation in Ruffin))).
5
  See, e.g., United States v. Bachsian, 4 F.3d 796, 799 (9th Cir.
1993) (excusing the failure of the prosecution to provide notice
before trial as accused had been informed that the government
intended to introduce the documents into evidence on a different
ground, the accused was provided with copies of the documents at
least two months prior to trial and did not claim he was unable
to prepare, request a continuance, and did not object to lack of
notice); United States v. Bailey, 581 F.2d 341, 348 (3d Cir.
1978) (adopting a more flexible approach for notice during trial
based on other courts of appeals’ decisions that have held that
“the purpose of the advance notice provision of the rule is
satisfied even though notice is given after the trial begins, as
long as there is sufficient opportunity provided for the adverse
party to prepare for and contest the admission of the evidence
offered pursuant to the rule”); United States v. Leslie, 542
F.2d 285, 291 (5th Cir. 1976) (same); 5 Jack B. Weinstein &



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United States v. Czachorowski, No. 07-0379/NA


admission and substance.   Any advance notice requirement, then,

applies to the statements, not to the means by which the

proponent intends to seek admission of those statements.   Trial

defense counsel admitted that he knew of AAC’s statements and

trial counsel’s intention to admit them into evidence long

before trial.   That satisfies the notice requirement of M.R.E.

807.

                                  B.

       Having found no abuse of discretion in the military judge’s

finding that M.R.E. 807’s notice requirement had been met, we

turn now to Appellant’s substantive claim that the admitted

statements violated M.R.E. 807.    The residual hearsay exception

embraced by M.R.E. 807 permits, in rare circumstances,6 the

introduction of hearsay testimony otherwise not covered by

M.R.E. 803 or M.R.E. 804 where, given “equivalent circumstantial

guarantees of trustworthiness,” the military judge

       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



Margaret A. Berger, Weinstein’s Federal Evidence § 807.04[2], at
807-37 (Joseph M. McLaughlin ed., 2d ed. 2008).
6
  According to the legislative history of Fed. R. Evid. 803(24),
which corresponded to M.R.E. 803(24), the residual exception was
to “be used very rarely and only in exceptional circumstances.”
S. Rep. No. 1277 (1974), as reprinted in 1974 U.S.C.C.A.N. 7051,
7066; United States v. Guaglione, 27 M.J. 268, 274 (C.M.A.
1988).

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United States v. Czachorowski, No. 07-0379/NA


     these rules and the interests of justice will best be
     served by admission of the statement into evidence.

M.R.E. 807.   Clause B balances the probativeness of available

evidence, and requires the proponent of the evidence to show he

could not obtain more probative evidence despite “reasonable

efforts.”   Failure to meet that burden renders the evidence

inadmissible.

     In United States v. Kim, 595 F.2d 755 (D.C. Cir. 1979), for

example, the defendant faced charges of conspiracy to defraud

the United States by bribing members of Congress with money

received from the Korean Central Intelligence Agency (KCIA).

Id. at 757.     He sought to rebut evidence suggesting that his

severe financial difficulties were resolved the very day he

received the bribery monies from a KCIA agent through a telex

from a Korean bank.    This document showed significant

alternative sources of income and fund withdrawals at times

unrelated to the bribery scheme.       Id. at 759.   The trial court

rejected the telex, offered under the residual hearsay exception

of Fed. R. Evid. 803(24).    Id. at 757.     While the telex may have

been the most probative evidence available as to the dates and

amounts of prior bank deposits and withdrawals, the defense

offered it as evidence of substantial alternative sources to

account for the defendant’s expenditures.      Id. at 766.    What is

more, the defendant had failed to show his inability to produce



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United States v. Czachorowski, No. 07-0379/NA

“actual business records reflecting the profitable business

activities which produced that income, or testimony from

business partners, employees and accountants as to the actual

income source in some active business.”    Id.

     Similarly, in DeMars v. Equitable Life Assurance Society,

610 F.2d 55 (1st Cir. 1979), the trial court, pursuant to Fed.

R. Evid. 804(b)(5), permitted the plaintiff’s counsel to read to

the jury a portion of a letter written by a deceased physician

containing the physician’s theory on the cause of death of the

insured.   Id. at 59.   The First Circuit found admission of that

evidence in error because the plaintiff had failed to show that

more probative evidence was unavailable.   Id. at 60-61.   After

all, since the physician’s opinion “was based solely on his

examination of the decedent’s medical and hospital records, the

death certificate and the report of the postmortem

examination[,] any other physician could have been obtained to

render an opinion on fairly short notice.”   Id. at 61.

     Often, then, because the direct testimony of the hearsay

declarant ordinarily would be judged the most probative

evidence, a showing that the out-of-court declarant is

unavailable to testify would be helpful to fulfill the

requirements of Rule 807(B).   E.g., United States v. W. B., 452

F.3d 1002, 1005-06 (8th Cir. 2006); Saltzburg, supra note 1,




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United States v. Czachorowski, No. 07-0379/NA

§ 807.02[7] (the language “signals that the declarant’s

unavailability, while not specifically required by this

provision, is still a consideration in determining its use”).

     This case, then, asks us to consider whether a trial

counsel’s bare assertion of a declarant’s unavailability

satisfies the Government’s burden to prove the unavailability of

other direct and more probative evidence on point.   We hold that

it does not.

     We are aware of no case where such an uncorroborated

assertion satisfies the proponent’s Rule 807(B) burden.    What is

more, courts have found the residual hearsay exception

inapplicable when the evidence is not unreasonably difficult to

obtain directly from an available declarant.    United States v.

Scrima, 819 F.2d 996, 1001 (11th Cir. 1987) (holding Fed. R.

Evid. 803(24) not applicable when the proponent of the evidence

made no showing that reasonable efforts could not have produced

a witness with direct, personal knowledge); United States v.

Taylor, 792 F.2d 1019, 1027 (11th Cir. 1986) (finding error in

the trial court’s admission of hearsay evidence when the

declarant could have been questioned about her own statements);

Elizarraras v. Bank of El Paso, 631 F.2d 366, 374 n.24 (5th Cir.

1980) (stating that Fed. R. Evid. 803(24) exception is generally

not applicable where the declarant is available to testify).




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United States v. Czachorowski, No. 07-0379/NA

     A trial judge, then, cannot take it for granted that a

declarant of any age is unavailable or forgetful, and then admit

hearsay testimony under the residual exception instead.    Absent

personal observation or a hearing, some specific evidence of

reasonable efforts to obtain other probative evidence is still

required under M.R.E. 807(B).   It was insufficient, for example,

for prosecutors to justify assault victims’ unavailability based

solely on counsel’s assertion to the court that the “victims

were tourists scheduled to depart” the jurisdiction.    Government

of the Canal Zone v. Pinto, 590 F.2d 1344, 1352 (5th Cir. 1979).

     However, that is exactly the type of assertion on which the

military judge relied in this case.    Trial counsel stated,

without evidence of record, that AAC had lost all memory of the

assaults over the previous year.     This record also indicates

that the military judge neither conducted an individual

assessment of AAC’s unavailability in this case nor sought

additional corroboration, choosing instead to take AAC’s

unavailability for granted.   The military judge found that AAC

“either doesn’t recall or has no independent recollection or

other basis for saying that she uttered th[e accusatory] words,”

adding that “[t]he child apparently is, for whatever reason,

unable to come into this courtroom to provide testimony

regarding this.   She doesn’t remember it –- I have no clue why.”

By ignoring the Government’s burden to prove that reasonable


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United States v. Czachorowski, No. 07-0379/NA

efforts could not be made to bring AAC to testify herself, the

military judge erred when he apparently relied on trial

counsel’s assertion that AAC’s “memory fell off significantly”

and that she “simply doesn’t remember,” and found AAC

unavailable without a basis for that finding other than the

assertion.

     Nor did trial defense counsel concede the issue of

unavailability.   Like the military judge, defense counsel was

simply confronted with trial counsel’s bare assertion that AAC

was unavailable without any explanation.   Defense counsel stated

that “we’ve been advised in the pretrial conference, [that] the

child will not testify” and that he did not know, “beyond what

was said [at trial], why the child will not come in.”   Rather

than conceding AAC’s unavailability, defense counsel thus

highlighted the meager foundation upon which the military

judge’s determination stood.

     Since the Government failed to establish that it could not

procure more probative testimony through other reasonable means,

as required by M.R.E. 807(B), admission of AAC’s out-of-court

statements was error that materially prejudiced Appellant’s

substantial rights under Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2000).




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United States v. Czachorowski, No. 07-0379/NA

                               III.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.     The findings and sentence are

set aside.   The record is returned to the Judge Advocate General

of the Navy.   A rehearing is authorized.




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United States v. Czachorowski, No. 07-0379/NA


     BAKER, Judge (concurring in part and in the result):

     I agree with the result in this case; however, I write

separately to distinguish my views from those of the majority in

two respects.   First, the requirement for notice is more nuanced

than as presented in the majority opinion.   In my view, Military

Rule of Evidence (M.R.E.) 807 requires notice that a proponent

intends to offer evidence under the residual hearsay exception,

not simply that the proponent intends to offer the hearsay

evidence in some manner.   Second, in light of its conclusions

regarding notice, the Court’s opinion does not fully address the

colloquy between the military judge and defense counsel on the

issue of the unavailability of the child witness.   My reading of

the record suggests that the military judge may have assumed

that he obtained a concession from defense counsel.

                                I.

     The majority concludes that the notice requirement of

M.R.E. 807 is satisfied as long as the proponent notifies the

other party that it intends to offer the hearsay statements.

However, the text of the rule makes it clear that the notice

contemplated is for hearsay “admitted under this exception,” and

not just under a hearsay exception, expressly noting that:

     a statement may not be admitted under this exception unless
     the proponent of it makes known to the adverse party
     sufficiently in advance of the trial or hearing to provide
     the adverse party with a fair opportunity to prepare to
     meet it, the proponent’s intention to offer the statement
United States v. Czachorowski, No. 07-0379/NA


     and the particulars of it, including the name and address
     of the declarant.

M.R.E. 807 (emphasis added).

     Moreover, if no more than generalized notice were required

an adverse party would not have a “fair opportunity to prepare

to meet it,” because he would not have prepared to address the

three threshold requirements found within the rule.

     A contrary reading is inconsistent with military practice.

The military system has long been one of open discovery.   See

Article 46, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

846 (2000); Rule for Courts-Martial (R.C.M.) 701.    Thus, in most

cases, excluding rebuttal evidence, the parties will obviously

have been put on notice that hearsay evidence is likely to be

offered.   So, it would make little sense to have a rule that

requires notice of something of which a party is likely to

already be aware.   Therefore, given the myriad hearsay

exceptions, the rule more logically requires notice of intent to

offer the statements under the residual exception.    This would

be consistent with how most other federal circuits view the

requirement.   See Kirk v. Raymark Indus., Inc., 61 F.3d 147, 167

(3d Cir. 1995); Wilco Kuwait (Trading) S.A.K. v. DeSavary, 843

F.2d 618, 628 (1st Cir. 1988); United States v. Brown, 770 F.2d

768, 771 (9th Cir. 1985); United States v. Atkins, 618 F.2d 366,

372 (5th Cir. 1980); United States v. Guevara, 598 F.2d 1094,



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United States v. Czachorowski, No. 07-0379/NA


1100 (7th Cir. 1979); United States v. Ruffin, 575 F.2d 346, 358

(2d Cir. 1978).   It is also consistent with this Court’s

practical approach to the preservation of objections and the

rules of evidence generally.

     The purpose of notice is to allow the parties the

opportunity to know on what basis they should be prepared to

argue the admission of evidence.       As this case illustrates, this

approach makes particular sense with respect to M.R.E. 807,

which raises legal and factual predicates that are distinct from

those at issue in applying other specific hearsay exceptions.

We have implicitly accepted this reading of the notice

requirement of the residual hearsay rule in one of our own

cases.   See United States v. Grant, 42 M.J. 340, 341 (C.A.A.F.

1995) (“As required by the . . . rule, [trial counsel] provided

notice of intent to offer residual hearsay.”).

     Nonetheless, notwithstanding my disagreement with the Court

on the notice requirement, I would not resolve the case on this

issue.   Counsel raised the notice issue and indicated he was

aware of the intent to offer the statements but was not aware

that they would be offered as residual hearsay.      However, he did

not indicate that he needed more time to prepare to meet the

evidence offered under the residual theory.




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United States v. Czachorowski, No. 07-0379/NA


                                II.

     The majority’s conclusion regarding notice is relevant to

whether defense counsel conceded the admissibility of the

hearsay evidence.   The Court’s rendition of what happened at

trial suggests that the military judge received a proffer from

trial counsel concerning the child witness’s availability and

without more, ruled that the child was unavailable.   A fuller

reading of the record suggests that the military judge was

seeking, albeit unsuccessfully, a concession from civilian

defense counsel on the availability of the child, to inform his

application of M.R.E. 807 to the hearsay evidence, which in the

context of this case might have proven determinative.   The

relevant part of the record reads:

     MJ: Now, I’ve just asked for a proffer from the
     government. The child apparently is, for whatever
     reason, unable to come into this courtroom to provide
     testimony regarding this. She doesn’t remember it -–
     I have no clue why. But in any event, she is
     unavailable for that purpose. So that statement, if
     it comes in at all, it would have to come in through
     the mother. There is no other source of that
     evidence, as I understand the state of the evidence to
     date. Does the defense dispute that?

     CDC:   That there’s no other evidence?

     MJ: No other evidence for -– of that statement.
     That’s the evidence being offered, “Daddy put his
     finger in my pookie.” Now, as I understand what the
     government proffered –- you can dispute this proffer,
     but as I understand what the government proffered is
     if it comes in, it comes in through the mother or it
     doesn’t come in at all because there’s no other source
     of that information. The child either doesn’t recall


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United States v. Czachorowski, No. 07-0379/NA


     it or for whatever reason cannot come in here and say,
     “Daddy did this to me.”

     CDC: That makes sense and, not to make matters any
     more complicated than they can be, I don’t know,
     beyond what was said here this morning, why the child
     will not come in here and there may be -– I don’t
     know, there may be a Brady issue at a later time after
     you rule on this motion.

            . . . .

     MJ: . . . So I guess what I’m asking you, Mr.
     Perillo, is do you have any reason to suggest that
     there is other evidence out there on this point?

     CDC:   The only other --

     MJ: On this point of evidence, “Daddy put his finger
     in my pookie.”

     CDC: If I understand your question, the only other
     evidence I’m aware of is the medical testimony, such
     as it is, from the nurse, the doctor and --

Shortly after defense counsel’s abbreviated response, the

military judge ruled that the hearsay statement of the child was

admissible under M.R.E. 807.    If, in fact, as the majority

concludes, defense counsel had already received fair notice

under M.R.E. 807, then it would be fair to read counsel’s

statement as a concession on admissibility under M.R.E. 807.

However, since it is my view counsel did not receive the

requisite notice under M.R.E. 807, I do not believe defense

counsel conceded the availability issue or the necessity

requirement of M.R.E. 807.   As a result, it became incumbent on

the proponent of this evidence, the Government, to carry its



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United States v. Czachorowski, No. 07-0379/NA


burden of showing that the hearsay statements were more

probative on the issue than any other evidence available to it.

Since this did not occur, the military judge admitted the

testimony as the Court concludes -- without evidence satisfying

the requirements of M.R.E. 807.   Accordingly, I concur in the

result.




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United States v. Czachorowski, 07-0379/NA


     RYAN, Judge (dissenting):

     I agree with Judge Baker that the notice requirement of

Military Rule of Evidence (M.R.E.) 807 requires specific notice

of intent to offer a statement under the residual exception to

the hearsay rule.   See Czachorowski, __ M.J. __ (1-3) (Baker,

J., concurring in part and in the result).   However, I disagree

with the majority and Judge Baker’s conclusion that the military

judge abused his discretion in admitting the hearsay statement.

     We review a military judge’s decision to admit evidence for

an abuse of discretion.   United States v. Donaldson, 58 M.J.

477, 482 (C.A.A.F. 2003).   In a decision to admit or exclude

evidence, “a military judge abuses his discretion if his

findings of fact are clearly erroneous or his conclusions of law

are incorrect.”   United States v. Ayala, 43 M.J. 296, 298

(C.A.A.F. 1995); see also Donaldson, 58 M.J. at 488 (granting

military judges considerable discretion in admitting evidence as

residual hearsay); United States v. Pollard, 38 M.J. 41, 49

(C.A.A.F. 1993) (“The ruling of the military judge admitting

residual hearsay is entitled to ‘considerable discretion’ on

appellate review.”).   Here the military judge correctly

delineated the legal test for the admission of residual hearsay

and his findings of fact were not clearly erroneous.   He did not

abuse his discretion, let alone the “considerable discretion,”

this Court previously afforded him.
United States v. Czachorowski, 07-0379/NA


     The second prong of M.R.E. 807 requires that the evidence

proffered be “more probative on the point for which it is

offered than other evidence.”   M.R.E. 807(B).   While I agree

with the majority that the purpose of the second prong is to

“balance[] the probativeness of available evidence,”

Czachorowski, __ M.J. at __ (9) (emphasis added), I disagree

that when the parties apparently agree there is no other

evidence, the military judge nonetheless has an independent duty

either to seek other more probative evidence or to require the

proponent to prove none exists.

     After a timely hearsay objection by the defense, the

Government asserted that AAC, a five-year-old child, no longer

remembered the event and that AAC’s mother’s testimony was the

only other evidence of AAC’s original statement.    When provided

a chance to rebut the Government’s assertion, defense counsel

instead conceded, at the end of the colloquy described by Judge

Baker, Czachorowski,    M.J. at       (4-5) (Baker, J., concurring

in part and in the result), that “the only evidence of which I’m

aware as to the alleged statement of the child would be mom.”1


1
  Judge Baker suggests that despite the military judge’s
acceptance of the defense counsel’s apparent concession that AAC
was unavailable, defense counsel could not concede because he
did not have proper notice of the basis on which the evidence
was being offered. But the military judge neither abused his
discretion nor committed plain error: defense counsel was so
informed at trial and never suggested to the military judge
either that he disagreed that AAC was unavailable because she

                                  2
United States v. Czachorowski, 07-0379/NA


Presented with no other evidence against which to balance the

probative value of the mother’s testimony, the military judge

concluded that the mother’s testimony was “more probative on the

point for which it [was] offered than any other evidence.”

M.R.E. 807(B).2    In light of the record when viewed in its

entirety, the military judge’s conclusion was plausible and

therefore not clearly erroneous.        See Anderson v. City of

Bessemer City, 470 U.S. 564, 573-74 (1985) (“If the district

court’s account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not

reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence

differently.”).

       The majority asserts that the military judge nonetheless

erred because even where the defense does not contest that the

hearsay declarant is unavailable and the defense agrees there is

no other more probative evidence, the Government still has a

burden to “prove the unavailability of other direct and more


did not remember or that he needed more time to challenge the
admissibility of the evidence as residual hearsay.
2
    The military judge concluded:

       That’s how I understand the state of the evidence.
       So, under that rationale, then this is the only
       evidence probative of that point. There is no other
       evidence, and so therefore, the second part of the
       test under 807 is met by the government because there
       is no other evidence on this point.

                                    3
United States v. Czachorowski, 07-0379/NA


probative evidence on point.”   See Czachorowski, __ M.J. at __

(8-12).   This approach appears novel.     The cases cited by the

majority stand for the proposition that prong (B) of the

residual hearsay exception must be considered and satisfied, a

point of law with which I agree.       But no case suggests that

M.R.E. 807(B) is not satisfied where there is no factual dispute

that the hearsay declarant does not remember the event and both

parties agree that the proffered testimony is the only probative

evidence.   The majority’s contrary suggestion -– that to satisfy

M.R.E. 807(B) the military judge is still required in this

situation to make some personal observations about the hearsay

declarant, to cite specific evidence, or to hold a hearing to

establish that reasonable efforts were made to obtain other

probative evidence, Czachorowski, __ M.J. __ at (11-12) --

places a burden on the military judge not contemplated by the

rules of evidence.   Just as the rules, except in instances of

plain error, put no duty on the military judge to interpose

himself between counsel and evidence that, if objected to, would

be inadmissible, see M.R.E. 103(a) (requiring parties to make

timely objections to prevent the admission of inadmissible

evidence), the military judge has no affirmative duty to worry

and challenge facts to which the parties apparently agree.

     The sole issue contested by the parties with respect to the

admissibility of AAC’s hearsay statement was whether the third


                                   4
United States v. Czachorowski, 07-0379/NA


prong of M.R.E. 807 was satisfied; residual hearsay is

admissible only if “the general purpose of [the M.R.E.] and the

interests of justice will best be served by admission of the

statement into evidence.”   M.R.E. 807(C).   Couched in other

terms, the statement must be highly reliable.   United States v.

Wellington, 58 M.J. 420, 425 (C.A.A.F. 2003) (quoting United

States v. Giambra, 33 M.J. 331, 334 (C.M.A. 1991).3

     Having established from the defense counsel’s concession

that no alternative evidence was available, the military judge

properly focused his inquiry, and the parties their arguments,

on the question whether the hearsay was sufficiently reliable.

The record reflects that, immediately after reviewing one of

this Court’s prior decisions, the military judge explicitly

addressed the factors we identified and made specific findings

relating to AAC’s mental state, the spontaneity of her

statement, the absence of suggestive questioning, and the

circumstances under which the statement was made.     See, e.g.,

Donaldson, 58 M.J. at 488 (listing factors).

     There is no doubt that the military judge could have

reasonably ruled in favor of excluding the hearsay on the ground

it was not sufficiently reliable, which was the actual point of


3
  As the military judge stated in his formal ruling on the
defense motion, “There wasn’t a question regarding materiality,
probative value and necessity, but only the trustworthiness of
the statement, and those factors were laid out on the record.”

                                 5
United States v. Czachorowski, 07-0379/NA


contention between the parties in this case.   The mother and her

parents were the only ones who heard the child’s statement, the

marriage between the mother and Appellant was both dysfunctional

and in disarray, the mother had a history of mental illness and

dishonesty, and neither the physical evidence nor the extrinsic

evidence from those who had interviewed the child unequivocally

supported the statement.   Ultimately, however, the military

judge applied the correct law; he was in the best position to

judge the credibility of the mother and her parents; and his

findings of fact, including those credibility determinations,

were not clearly erroneous.    See Anderson, 470 U.S. at 574

(“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.”).

     The facts of this case are troubling, but the military

judge did not abuse his discretion, and the Court of Criminal

Appeals conducted a proper legal and factual sufficiency review.

United States v. Czachorowski, No. NMCCA 200400735 (N-M. Ct.

Crim. App. Jan. 23, 2007) (unpublished).

     I respectfully dissent.




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