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 

2

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)). 
MARCHESANO – ARMY 20050291 

3

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.”
MARCHESANO – ARMY 20050291 

4

 

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] . . . . 

 
MARCHESANO – ARMY 20050291 

5

 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 
MARCHESANO – ARMY 20050291 

6

(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). 
MARCHESANO – ARMY 20050291 

7

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. . . . 
MARCHESANO – ARMY 20050291 

8

 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). 
MARCHESANO – ARMY 20050291 

9

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 crossexamination. 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. 
MARCHESANO – ARMY 20050291 

10

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 
MARCHESANO – ARMY 20050291 

11

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 coconspirators 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 
MARCHESANO – ARMY 20050291 

12

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 threepart 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. 
MARCHESANO – ARMY 20050291 

13

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: 
MARCHESANO – ARMY 20050291 

14

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). 
MARCHESANO – ARMY 20050291 

15

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.” 
MARCHESANO – ARMY 20050291 

16

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.). 
MARCHESANO – ARMY 20050291 

17

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. 
MARCHESANO – ARMY 20050291 

18

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). 
MARCHESANO – ARMY 20050291 

19

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 
MARCHESANO – ARMY 20050291 

20

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 fourpart 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 THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

 

∗

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

station. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: