United States v. Matthew Wayne Tome

cul- (1) opposing parties’ degree (2) faith; ability of the

pability or bad satisfy an award parties to

opposing (3) against an award fees

fees; whether others would deter parties opposing circumstances; similar acting under

from requesting fees

(4) parties whether participants and bene- all

sought to benefit to resolve a plan or an ERISA

ficiaries question regarding legal

significant (5)

ERISA; merits of the the relative positions.

parties’ (9th Thornton, 939, v.

Franklin

Cir.1993) Rykoff v. S.E. & (quoting Hummell Cir.1980)). (9th

Co., Cinel- F.2d faith and made in bad not

li’s claims were argument to by good faith supported

were this circuit. See DeVoll the law of extend Cir.1994), 408, 414 F.3d Painting, 35

Burdick — denied, U.S. -, rt. ce (1995). 131 L.Ed.2d decline to to section pursuant fees or costs

award

1132(g).

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, Wayne TOME, Defendant-

Matthew

Appellant.

No. 92-2104. Appeals,

United States Court of

Tenth Circuit.

July Gandert,

Joseph Asst. Federal Public W. N.M., Defender, appellant. for Albuquerque, Justice, Fischer, Atty. Dept, of Louis M. (John Atty., Kelly, Washington, DC J. brief) D.N.M., appellee. him the for on TACHA, ANDERSON, and Before HOLLOWAY, Judges. Circuit REMAND OPINION ON TACHA, Judge. Circuit

I. BACKGROUND jury Matthew A defendant convicted Wayne aggravated sexual abuse in Tome of 2241(c), §§ and violation of 18 U.S.C. 2246(2)(A) (B).1 appeal to this and court, admissibility challenged the defendant relayed six statements Each related out-of-court witnesses. witness (A.T.). statements made the child victim testimony of these We concluded because it was not witnesses admissible Rules of Evidence under the Federal affirmed conviction. United defendant’s Tome, Cir. States — 696, 130 1993),rev’d, U.S. -, 2245(2)(A) (B). trial, § were found at 18 1. At the time of defendant’s offenses U.S.C. 2246(2)(A) (B) changed. § of the offense has not The substance now codified 18 U.S.C. (1995). (1994). especially We reasoned that the Our review is L.Ed.2d deferential challenged ruling of these government offered when the concerns the ad- implied missibility six witnesses to rebut defendant’s allegedly evidence hear- allega- charge say. that the victim fabricated her “Finally, Id. at 906-07. we consider Consequently, tions. Id. at 349. we held the record as a reviewing whole in evidentia- though even A.T. made the statements ry rulings.” Id. at 907. alleged after her motive to fabricate had

arisen, prior the statements were consistent III. DISCUSSION admissible under Fed.R.Evid. 801(d)(1)(B). Id. at 351. A. Kuper, Karen Laura Spiegel and Jean Supreme The United States Court re States, versed our Tome v. decision. United We first address the of three - U.S. -, -, 696, 705, 115 130 S.Ct. pediatricians who examined A.T. In their (1995). Specifically, L.Ed.2d 574 the Court testimony, relayed the three doctors state- 801(d)(1)(B) “permits held that Rule the in during ments made A.T. either or before troduction of a declarant’s consistent out-of- physical the doctors’ examinations of the charge court statements to rebut a of recent trial, child. At the district court admitted improper fabrication or influence or motive hearsay testimony the doctors’ under both only when those statements were made be 801(d)(1)(B) Rules charged im fore the recent fabrication or Although hearsay testimony gener is proper influence or motive.” Id. inadmissible, 802, ally Fed.R.Evid. the Fed The case is now before us on remand.2 eral Rules Evidence contain a number of order, parties Pursuant to our have sub exceptions hearsay prohibition. to the See supplemental addressing mitted briefs 803, Fed.R.Evid. excep 804. One of these remand, remaining issues.3 On we must first tions, 803(4), Rule makes admissible “[s]tate challenged determine whether the evidence purposes diagno ments made for of medical could have been admitted under another rule or describing sis treatment and medical his of evidence. Fortier v. Dona Pla See Anna tory, past present symptoms, or or pain, or Partners, 1324, (10th za 747 F.2d 1331 Cir. sensations, inception general or the or char (“We 1984) may rulings affirm the on admis acter of the cause or external source thereof sion of if that evidence evidence is admissible reasonably pertinent diagnosis insofar as any of the Federal Rules of Evi or treatment.” Fed.R.Evid. This ex dence.”). any If we find that of the state ception premised theory on the that a inadmissible, ments were we must then as patient’s physician to her are sess whether the district error court’s likely particularly to be reliable because the admitting them was nevertheless harmless. patient has a self-interested motive be 949, Flanagan, See United States 34 F.3d efficacy truthful: She knows that the of her (10th Cir.1994). 955 depends upon accura medical treatment cy provides of the information she to the

II. STANDARD OF REVIEW Joe, 1488, doctor. United States 8 F.3d — (10th Cir.1993), denied, Evidentiary decisions rest within the 1493 cert. U.S. (1994). -, court, 1236, sound discretion of the trial 114 127 L.Ed.2d we S.Ct. 579 only differently, review those decisions for an “a made in the abuse Stated statement Cestnik, services, that procuring discretion. United States v. 36 course of medical where — denied, Cir.), F.3d a 906 cert. the declarant knows that false statement U.S. -, mistreatment, may misdiagnosis S.Ct. 130 L.Ed.2d 1113 cause examining appellate 2. Because the facts of this case are set out at 3. After the briefs and rec- ord, length unanimously panel that both our earlier decision and in the this has determined Tome, materially Supreme opinion, argument Court's see 3 F.3d at oral would not assist 344-46; Tome, - U.S. at-, Fed.R.App.P. appeal. determination of this 34(a); See 699-700, only at we will refer to the as 10th 34.1.9. The case is therefore facts Cir.R. necessary disposing remaining argument. oral issues. ordered submitted without reasonably pertinent credibility.” those doctors were guarantees of special carries diagnosis or treatment. Illinois, v.White (1992). 736, 743, 116 L.Ed.2d Kuper Karen Ecklebarger of Child Protection Kae physi to a A declarant’s Kuper, a to Dr. Karen referred A.T. Services responsible person for identifies cian that physical a pediatrician, for certified board ordinarily inadmis injuries is declarant’s exam Kuper testified examination. the assail because sible under occasions, September A.T. on two ined unnecessary usually either identity is ant’s examination, to the first 1990. Prior October treatment. or effective diagnosis accurate for Kuper testified interviewed A.T. Joe, court held in Joe, 1494. This “to ascer purpose of the interview revealing however, hearsay statement exactly injuries had occurred.” In tain what who is identity abuser sexual questions, A.T. told Ku response Kuper’s family or household the victim’s member abuse, pointing at times per about the sexual 803(4) where the “is admissible appropriate of dolls answer to the areas relationship with an intimate has such abuser A.T. also identified de Kuper’s questions. identity becomes victim that the abuser’s interview, After the fendant as her abuser. proper the victim’s ‘reasonably pertinent’ to physical exami performed complete holding, 1495. In so we Id. at treatment.” A.T. nation of that reasoned A.T.’s statement to find it clear that suf- sexual abuse victims of domestic [a]ll Kuper’s reasonably pertinent to Kuper was injuries, psychological fer emotional treatment of A.T. The proper diagnosis and of which de- nature and extent the exact in the statement was information contained identity of the abuser. The pend on the of A.T.’s important Kuper’s to determination know who physician generally must the therefore condition. This statement was ad- proper to render was in order abuser missible physician’s treat- the treatment because necessarily when the abus- ment will differ Testimony 2. Laura Reich family or a member of the victim’s er is In the domestic sexual abuse household. Septem Dr. Laura Reich on A.T. saw case, treating physician example, for 21, 1990, of a skin rash in ber for treatment therapy or coun- may special recommend any vaginal was unrelated to area that to seling and instruct the victim remove At time of Reich’s exami sexual abuse. dangerous environment herself from A.T., allega of the nation of Reich was aware seeking by leaving the home and shelter Reich testified tions of sexual abuse. elsewhere. examination, conducting physical prior to personal questions. A.T. several she asked omitted). (footnote Although Id. at 1494-95 questions “any was whether One of these adult, an we stated the victim Joe was private body her in her had ever touched reasonably identity per- “the of the is abuser testimony, According Reich’s A.T. area.” to every virtually tinent in domestic sexual as- thing put had replied “that her father case,” including in which the vic- sault those testimony of Reich’s her.” remainder Thus, a child. when a tim is at findings her and conclusions from concerned identifies her victim of domestic sexual abuse physical examination. physician, physician’s assailant to her she testified that the reason had recounting identification is Reich of the admissible 803(4) “reasonably preexamination interview with it is conducted under Rule when to be diag- A.T. was “that the child needs comfort- pertinent” to the victim’s treatment or 1495; I examine her.” Strong able with me before Be- nosis. Id. at also John W. see adequacy al., § cause the Reich’s examination on Evidence et McCormick 1992) (hereinafter McCormick). comfort part depended on child’s ed. her, statement was rea- reviewing testimony pedia- of each we find A.T.’s After trician, diagnosis sonably pertinent Reich’s or A.T.’s statements to we conclude that physician. advisory consequently was admissible As the committee’s note It treatment. explains, hospital “[statements to the rule under Rule attendants, drivers, ambulanee or even mem- Spiegel Jean S. family might bers be included.” Fed. 803(4) advisory R.Evid. committee’s note. profes Spiegel, an assistant Dr. Jean Accordingly, government argues University of New pediatrics at the sor of Ecklebarger A.T.’s statement to is admissible Mexico, examined A.T. for testified that she job because the of a Child Protection Ser- offering opinion as to purpose second equivalent vices caseworker “was to that of a sexually child had been abused. whether the 803(4),” doctor under Fed.R.Evid. and be- training in Spiegel had the area extensive Ecklebarger’s A.T. understood that cause abuse, and teaches other doctors child sexual “help role kids.” children to detect molesta how to examine Spiegel’s focused on tion. Most of however, previously, As stated aspects of her examination of the technical admissibility test for experi- that A.T. had and her conclusion subject “whether the matter of the state vaginal penetration. enced chrome reasonably pertinent diagnosis ments is examination, Spiegel testified On redirect § treatment.” McCormick at 248. body she had that A.T. told her where on Ecklebarger diagnosed neither nor treated during Spiegel abuse. did been touched A.T. She described her role as “the initial volunteer, ask, did A.T. who had not nor investigat[or].” Ecklebarger short-term Clearly, A.T.’s statement re- touched her. times, spoke to A.T. “[t]he two after which garding been touched was where had ongoing protection case sent on to an pertinent Spiegel’s diagnosis of A.T. The Clearly, Ecklebarger worker.” did not treat properly district court therefore admitted the any way. A.T. in 803(4). statement under Rule Ecklebarger diagnose did A.T. In- Nor deed, Ecklebarger the child to Dr. referred Ecklebarger B. Kae opinion regarding for a medical the Ecklebarger, a caseworker for Kae Moreover, allegations Ecklebarger of abuse. Services, Springs Child Protection Colorado only that A.T. to the testified she interviewed 29, August interviewed A.T. on 1990. Eckle necessary to make a decision extent whether interview, barger during testified that protective appropriate. Because order Ecklebarger gave a detailed account of A.T., Ecklebarger diagnose did not or treat abuse, using alleged at times anatomical Ecklebarger the child’s statement could ly to demonstrate what had correct dolls “purpose[ of medical ] not have been for Ecklebarger that occurred. also testified treatment,” diagnosis and thus was not or grandmother A.T. claimed she had told her 803(4). properly Rule admitted under government and aunt of the abuse. The argues Ecklebarger’s testimony that is ad We next turn to whether the state 803(4) Rule missible under either Rule could have been admitted under the ment 803(24), hearsay exception.4 803(24). the residual hearsay exception, Rule residual applicability excep discuss the of these two hearsay exception The residual to the rule tions in order. makes admissible specifically by hearsay statement not covered [a]

For a statement to be admissible having 803(4), any foregoing exceptions but declarant need not of the equivalent guarantees circumstantial necessarily have made the statement to a 803(24) rulings. transcript v. White from the trial ed to Rule It is not clear Huff Cf. (7th Cir.1979) hearsay Corp., exceptions district Motor 609 F.2d 292 which to the rule the that, (explaining did Ecklebarger's because the district court court contain- admitted exception ing government in its offered not mention the residual A.T.'s statements. evidence, 801(d)(1)(B), 803(4), ruling excluding certain the court had the statements under Rules except attempt replicate the district "little choice Because the basis of unclear, that be made ruling exercise of discretion would court's is we are unable to review making ruling"). judge judgment normally trial its with the deference accord- description of the most detailed .trustworthiness, ger the if the court determines anyone.” provided that she abuse (A) is offered as evi- the statement (B) fact; the statement material of a dence admissibility un- for requirement The first it point for which on probative 803(24) is more statement have is that the der Rule any evidence which other than is offered guarantees of trustworthiness circumstantial through reason- procure can proponent twenty-three specific hear- equivalent to the (C) general purposes efforts; in Rule 803. say exceptions enumerated able justice Thus, is so the interests truthfulness rules and “if the declarant’s these surrounding of the circumstances admission clear from the be served best will cross-examination would be that the test of evidence. into statement hearsay rule does marginal utility, then the must use cau- Courts Fed.R.Evid. at trial.” of the statement not bar admission admitting evidence under when tion 805, 820, 110 Wright, Idaho v. 803(24), interpretation of expansive for an (1990).5 3139, 3149, 111 When L.Ed.2d exception would threaten the residual circumstantial exception, this applying entirety of the rule. As swallow the that we con- guarantees of trustworthiness 803(24) warned, Rule should be “ has this court time the that existed at the sider ‘are those extraordinary only “in circumstances used include those was made and do not ” that the evidence the court is satisfied where using hindsight.’ may added be trustworthiness and is guarantees of offers Corp., 609 F.2d (quoting v. White Motor Huff material, necessary in in- probative (7th Cir.1979)). Moreover, other Farley, justice.” United States terest the truth of evidence that corroborates Cir.1993). not a circumstantial hearsay statement trustworthiness. guarantee of the declarant’s argues that A.T.’s statement Defendant (“[W]e think Id. at 110 S.Ct. at 3150-51 inadmissible under Rule Ecklebarger was corroborating presence of evidence more guar- circumstantial because it lacked any error ad- appropriately indicates it was and because antees of trustworthiness harmless, might mitting the statement be point for which it probative on the not more any presum- than that basis exists for rather gov- any other evidence the offered than (foot- trustworthy.”) ing the declarant to be response, introduce. ernment could omitted). note because government contends work- similarity Wright, Supreme the roles of social between In Idaho v. cases, A.T.’s and a doctor in child abuse factors that courts er Court identified several Ecklebarger determining had circumstan- statements to consider in “whether should hearsay by similar to a child witness guarantees of trustworthiness statements made tial 803(4) The in cases are reliable.” Id. on which Rule is based. child sexual abuse those 821, at 3150. These factors argues that at 110 S.Ct. government also spontaneity of child’s state- gave Ecklebar- include the necessary was because “A.T. exceptions hearsay Wright under to the precise was not the such statements 5. The issue in Idaho v. 803(24). Indeed, admissibility Rather, Rule evidence under of two rule.—not the Confrontation Clause. challenged petitioner Wright in reliability requirement the cases involved the of hearsay on Confronta- admission of a statement hearsay exception. See of the residual Arizona 808, grounds. at tion Clause 497 U.S. Robinson, 191, 801, 811 153 Ariz. 735 P.2d requirements of Con- at 3143. One of the 226, Sorenson, (1987); 143 Wis.2d Wisconsin Clause, however, is that the frontation essence, (1988). In 421 N.W.2d 83-86 adequate 'indicia of reliabili- "bear[] statement meaningful saw no distinction between Court (internal ty.’” Id. at 110 S.Ct. at 3146 803(24)’s requirement that a statement have Rule omitted). quotation require- It was this marks guarantees of trustworthiness" "circumstantial length at ment Wright. Court discussed requirement that it Confrontation Clause so, doing it cited and discussed sever- In Thus, adequate reliability.” of "bear indicia identify factors al lower court decisions that though Wright technically even a Confronta- assessing the reli- which should be considered in case, reliability its discussion of the tion Clause ability by of statements child wit- out-of-court victims of sexual statements child 821-22, at nesses in abuse cases. Id. sexual equally pertinent to both Confrontation abuse is Importantly, at each of the cases S.Ct. 3149-50. 803(24) admissibility Clause cases and Rule cases. cited the Court addressed the ment, repetition surrounding of the child’s Because the circumstances the consistent child, Ecklebarger equivo- of the the A.T.’s allegation, the mental state are cal, terminology unexpected of a child of use of we find that the statement lacked the age, and the lack of a motive to guarantees similar “circumstantial of trustworthi- 803(24).6 considered the admissi- required by fabricate. ness” Rule The state- bility hearsay statements of a child hearsay, ment was therefore inadmissible in United States v. admitting victim sexual abuse and the district court erred this case, In Farley, 992 F.2d 1122. we testimony. guarantees sufficient of trustworthi-

found in a child’s statement to her mother ness C. Lisa Rocha the child made the statement soon where A.T. first mentioned the abuse to Lisa assaulted, employed after childish she Rocha, babysitter during who was A.T.’s terminology, and was emotional when During testimony, summer of 1990. her Ro- Id. at told her mother of the assault. separate cha related two out-of-court state- ments A.T. analyzing the trustworthiness of Ecklebarger, empha A.T.’s statement to we August first The occurred on that, size to hold the statement admissible babysitting 1990. Rocha testified while 803(24), we must find that A.T. A.T. at day, spon Rocha’s home on that A.T. particularly likely telling “was to be the truth taneously Rocha asked not to let her mother Wright, made.” when the statement was send her back to her father. When Rocha at 3150. It is not why asked A.T. she did not want to return to enough merely to find an absence of evidence father, replied, my her father “Because that the statement was unreliable. gets drunk and he thinks I’m his wife.” The district court ruled this statement was At least three circumstances sur 801(d)(1)(B) admissible under Rules rounding support the statement its trustwor First, court The district found the state Ecklebarger highly thiness. 803(24) ment under experienced interviewing admissible Rule because trained and chil guarantees there were “circumstantial allegedly dren who were victims of abuse. Second, equivalent ... trustworthiness to the circum experience, because Eeklebar permit hearsay which ... stances ger’s open- interview with A.T. consisted of 803(3) ended, govern non-leading questions. Finally, [Fed.R.Evid. ].” al argues August 22 ment now that A.T.’s state though language, A.T. used childish she de ment to Rocha was admissible under either specificity scribed the sexual abuse with or Rule graphic detail. circumstances, however, 803(3), Three other indi- Under Rule “a statement of the mind, existing cate that the statement does not meet the declarant’s then state of emo- tion, sensation, ..., high being “especially physical threshold of condition but trustwor- First, thy.” spontane- including memory the statement was not not a statement of or be- ous; Ecklebarger prove that A.T. fact or testified knew lief to remembered be- lieved,” brought Ecklebarger by hearsay rule. she had been to to tell is not excluded 803(3). recently about had done to Fed.R.Evid. We addressed [defendant] her “what 803(3) Second, Ecklebarger’s scope her.” of Rule in States v. interview United Joe, abuse, in A.T. was not close time to the 8 F.3d 1488. The defendant Joe had occurring year allegedly raped eight days more than one wife before after Finally, being murdering events that A.T. described. the in- her. Id. at 1491. While place arguably injuries rape, terview took when A.T. had a treated for sustained story: motive to fabricate the wanted to victim told her doctor that she was “afraid She being her had threat- remain with her mother instead of sometimes” because husband custody. kill Id. held that returned to her father’s ened to her. We contention that Eckle- 6. Because the statements do not meet the trust- not address defendant’s 803(24), unnecessary. requirement barger's testimony worthiness of Rule we need was court’s disagree with the district must that she was We statement out-of-court victim’s here, like those ruling. The circumstances was admissible “afraid sometimes” 803(3) then to Ecklebar- surrounding it reflected her A.T.’s statements Rule because spontaneity at 1492. The of ger, equivocal. mind. While the existing state of are however, statement, trustworthiness, did not A.T. of the favors its remainder the statement Rather, it mind. year of after indicate her state more than a made the statement (i.e., afraid why she was at a time when “an assertion had occurred and the abuse might kill thought her husband arguably because she a motive to fabricate she had her).” part this second Id. at 1493. Because story. therefore cannot find A.T.’s clearly a statement of the statement was from the surround- “truthfulness is so clear belief, un- it not admissible memory or that the test of cross-ex- ing circumstances 803(3). Id. marginal utility.” Rule der be of amination would at 3149. Wright, case, A.T.’s first statement present In the court abused its discretion The district requirements does not meet to Rocha 803(24). admitting under Rule the statement 803(3). does not reveal The statement Rule mind, emotion, existing state of “then A.T.’s to Rocha occurred A.T.’s second statement sensation, Fed. physical condition.” 27, 1990, of A.T.’s August on at the home 803(3). government argues that The R.Evid. mother, Beverly Padilla. Rocha had related asking part first of A.T.’s statement — Padilla, and, August 22 to A.T.’s to New not to let her be taken back Rocha unsuccessfully attempted to Padilla had after expressing fear. We a statement Mexico—is A.T., Padilla the matter further with discuss say that she was disagree. A.T. did not subject again with asked Rocha to broach the afraid; merely expressed desire testimony, According to Rocha’s when A.T. mother in Colorado. More- remain with her explain earlier re- Rocha asked A.T. to her statement, over, part re- the second marks, regard- A.T. several details described question, falls within sponding to Rocha’s ing specific one instance of abuse her 803(3)’s express prohibition is “a Rule —it admitted this tes- father. The district court memory prove fact ... statement of 801(d)(1)(B) timony express- under Rule 803(3). Thus, Fed.R.Evid. remembered.” ly ruled it inadmissible under not August 22 statement to Rocha was A.T.’s record, Upon we conclude that review of the admissible under Rule court not its discretion the district did abuse ruling the statement inadmissible under court also ruled The district 803(24).7 was admissi Rule A.T.’s first statement to Rocha residual ble under Rule —the

exception ruling for an abuse we review —a Beverly D. Padilla Cestnik, discretion. 36 F.3d at 906. See Padilla, mother, Beverly A.T.’s testified analogized court A.T.’s state district 803(3), apart- room of her that she was another ment to one admissible 27, 1990, that, August when A.T. de- finding spontaneous it was and ment on because (AT.’s unsolicited, father’s abuse to Rocha requisite it had the circumstan scribed her Rocha). Padilla related guarantees tial More second statement trustworthiness. over, jury portion of A.T.’s statement the court noted when made statement, asking a “child ... Rocha about the instance of abuse she was court admitted this tes- person apparently of a she felt father. The district the aid who 801(d)(1)(B), gov- timony and the Farley, 992 F.2d at 1126 was a friend.” Cf. argue now it was (noting “youth greatly ernment does not the declarant’s evidentiary any other rule. that reflection and admissible under reduee[s] the likelihood involved”) (internal quota find no other basis on which this fabrication were We likewise omitted). testimo- statement was admissible. Padilla’s tion marks brief, argues admitting supplemental government the statement was harm- In its the con- August the harmlessness of the 27 was inad- less error. discuss cedes that A.T.'s Nevertheless, hearsay government erroneously below. hearsay. the admitted missible case, erroneously statement to Ro- this ny regarding A.T.’s second admit hearsay. extremely compelling. inadmissible ted evidence was cha was therefore

A.T.’s statements to Rocha Ecklebarger and were the most detailed accounts of the abuse Analysis E. Harmless Error earlier, presented at trial. As discussed vividly Having particu concluded that A.T.’s these statements described a Rocha, great specificity lar instance of Ecklebarger, abuse hearsay statements to inadmissible, graphic They painted and in terms. a rather Padilla were we must de and picture By comparison, brutal of defendant. erroneous admission termine whether their testimony victim’s own at trial was not harm district court was nevertheless nearly comprehensive as articulate or in its conducting “In a harmless error re less. Moreover, description of the most of abuse. view, record de novo.” Flana we review the prosecution’s remaining con evidence gan, 34 F.3d at 955. Because the erroneous cerned not the abuse itself —nor the abuser’s testimony is a noncon admission of identity- medical evidence that A.T. had Perez, error, v. stitutional see United States —but penetration. suffered (10th Cir.1993) (en banc), 1574, 1583 989 F.2d from apply the harmless error standard we strength erroneously Given ad- States, 750, 765, 328 U.S. Kotteakos United statements, grave mitted this court is left (1946). 1239, 1248, 90 L.Ed. testimony as doubt to whether the substan- standard, we must ask whether Under this tially influenced the outcome of defendant’s jury’s verdict was say trial. Because we cannot that the dis- admitting trict court’s errors in these state- substantially swayed by the error.... harmless, ments were defendant’s conviction inquiry merely whether cannot be cannot stand. result, enough support there was apart phase from affected the error. IV. CONCLUSION so, rather, the error

It is even whether so, if had substantial influence. If itself by Kuper, A.T.’s statements related doubt, grave the conviction one is left Spiegel pursu- and were admissible cannot stand. ant to Rule But the statements of testimony in the of Ecklebar- included Kotteakos, 66 S.Ct. at 1248. 328 U.S. Rocha, ger, and Padilla were inadmissible Moreover, government “the has the burden hearsay. Because the erroneous admission error proving that the non-constitutional harmless, judg- of this evidence was not Flanagan, 34 F.3d at 955. was harmless.” REVERSED, court is ment the district requires a review The Kotteakos standard REMANDED for further and the case is record, ing focus court to examine entire opinion. proceedings consistent with this ing particularly erroneously on the admitted whether, question statements. The is not HOLLOWAY, Judge, concurring Circuit statements, omitting the inadmissible dissenting: and jury record contains sufficient evidence for majority’s fully I in the well-rea- concur Rather, we must to convict the defendant. testimony Eck- analysis of the of Kae soned statements, light whether the discern Rocha, Beverly lebarger, Padilla Lisa record, “substantially influenced” the whole agree that the out-of-court statements trial, the outcome of the or whether we are witnesses inad- made A.T. to these were “grave as it had left doubt” to whether hearsay. agree I also that the erro- missible Birch, 39 such an effect. United States v. through of these statements neous admission (10th Cir.1994); F.3d United Rocha, Ecklebarger, Mejia-Alarcon, States harmless and that therefore Padilla was not — denied, U.S. -, Cir.), cert. to a new trial. Tome is entitled defendant (1993). If 126 L.Ed.2d 279 our However, majority’s disagree I with the questions yes, answer to either of these statements conclusion that A.T.’s out-of-court requires reversal. error 1456 obtaining purposes of professional for the Spiegel were ad Kuper, Drs. 803(4). for, of, providing In treatment emo- diagnosis Unit or under Fed.R.Evid. missible (10th 1488, Joe, 1493 injuries.” 8 F.3d 11 F.3d at psychological v. tional or ed States — denied, -, “[tjhere Cir.1993), 114 cert. court concluded is noth- 1449. The (1994), 1236, we said appre- 127 L.Ed.2d suggest that R.H. ing S.Ct. in the record to 803(4) exception to the “[t]he it in his best interests to tell ciated that was theory reliability that a of founded on rule is unlikely and was therefore to lie.” the truth patient’s own mo from the emanates worker] at 1450. “How social ex- [the selfish understanding ‘that the tive—her R.H., purpose to how plained her role and effective depend received will treatment ness questions, him and how and where she asked of provid accuracy upon the information matters that of she conducted the interview are on Evi physician.’ McCormick ed to the provide evidence ‘that the child under- can (John ed., Strong dence, § at 246-47 W. therapist’s] role in physician’s [or stood the added.) 1992).” It (Emphasis is the 4th ed. provide trigger motivation to order to ” furnishing in accurate patient’s self-interest Id., quoting United truthful information.’ guarantee provides which

information (8th Barrett, F.3d v. States justifies excepting which trustworthiness Cir.1993).1 types out-of-court statements from these Ring in also relied on v. The court White hearsay. on the admission of general bar (8th Erickson, Cir.1992), 983 F.2d 818 a ha- Illinois, 346, 356, 112 v. 502 U.S. See White at beas case which held that the admission (1992) (“a 736, 743, 116 L.Ed.2d 848 S.Ct. 803(4),2 trial, Minn.R.Evid. of out-of- under procuring in the course of statement made year a court statements made three old services, where the declarant knows medical child, C.R., physician peti- violated may misdiagno cause that a false holding, rights. confrontation In so tioner’s mistreatment, special guaran carries sis or Eighth said: Circuit may credibility a trier of fact not tees of testimony.” replicated think courtroom C.R., mother, sought not C.R.’s added.)). Thus, (Emphasis unless the declar- treatment,” and there was no evi “medical giving fact that truthful appreciates ant suggesting dence that at the time of the necessary proper information is to ensure interview C.R. even knew Dr. Levitt was guarantee diagnosis, there is no treatment years three old at the doctor. C.R. was justifying the admission of of trustworthiness 803(4) why principal time. The reason is a the statement under Rule automatically hearsay exception traditional White, 11 F.3d United States carrying indieia-of-reliability label is (8th Cir.1993), the defendant was convicted because of the selfish-motive doctrine. sexually abusing grandsons, wife’s two exception This is based on the belief that a L.H., R.H. and who were nine and seven seeking un person medical treatment years respectively old at the time of defen- likely to he to a doctor she wants to treat gued that social worker were dant’s trial. On The court noted that statements be admitted under appeal, not made the defendant ar- admissible order for the R.H. to a 803(4) 983 F.2d the truth. her, [354] — since it is [58], 112 820.3 White [v. her best interest Illinois], at 742-43. ^[502] U.S. at tell majority opinion correctly government theory patient’s you Matthew, on the that a what ised statements told Tara about what- physician likely particularly was, you to her are to be ever it any did tell that to doctor? patient has a you reliable because the self-inter- say yes And can you or no or don’t motive to be truthful: knows that ested She remember. efficacy of her medical treatment de- (No A response.) audible pends upon accuracy of the information Q remember, you Do [A.T.]? provided Majority Opinion to the doctor.” A No. 1449, citing Joe. majority appro- thus

priately recognizes the selfish treatment in- Q you doctors, any Do know [A.T.]? supporting exception. terest rationale However, proof (No without that A.T. had such A response.) audible knowledge, guarantee of trustworthiness Q you Do any know the names doc- disappears, and the statement then stands on you tors that went to see? grounds any no more rehable than other (No A response.) audible hearsay statement. Q you Do know the name of Dr. Ku- record, Turning to the trial there is no per? A.T., showing which demonstrates that who A Yes. years alleged was four old at the time of the Q job Is that help doctor’s kids too? abuse, five at the time she saw Drs. A Yes. Spiegel, and six when she saw Dr. necessary understanding had the that “the

efficacy depend[ed] of her medical Q you treatment Do know Spie- the name of Dr. upon accuracy of the information gel? she

provide[d] Majority Opinion to the doctor.” A No. testimony at 1449. A.T.’s own did not estab- appreciated that importance

lish Q Kuper, How about Dr. did she hurt being truthful govern- with the doctors. The you any way? explore did not ment this area on direct A No. cross-examination, examination. On defense attempted counsel to ask A.T. about the doc-

tors she saw: Q you Kuper, -When talked to Dr. you telling do remember her the truth or Q you [Neda, What talked with Tara truth, you not the do remember? Matthew, prosecutor,] about de- [the

fendant,] you about, I’m asking that’s what A No. girl's] comparable that [the frame of mind was P.2d at 1135 n. 7. The court in Oldsen did [Tjhere patient seeking uphold challenged treatment.... is no the conviction because the explained properly evidence that Dr. Harrison ever was admitted on the alterna- [the ground being circumstantially questions relationship that tive child] trustwor- arose, thy. Id. at part, at least in from a desire to treat finding her.... [the child] Absent made George, But see United States v. believing they her statements would be used (9th Cir.1992) ("As matter, general age her, help Dr. Harrison to I am reluctant to rest personal of the child and her other characteris- my decision on the cases relied on go weight hearsay tics of the court.”); People, Oldsen v. 732 P.2d 1135— admissibility."); rather than their State v. cf. (Colo.1986) (holding statements inadmissible Robinson, 153 Ariz. 735 P.2d 803(4) (which under Colo.R.Evid. is identical to (1987) (upholding admission of statements under rule) the federal because there was no 803(4) (also evidence Ariz.R.Evid. identical to the federal five-year capable old child rule), "was concluding "[t]he record is not as clear recognizing, challenged at the time the state regarding making [the child’s] motive in made, provide ments were the need to accurate challenged statements. The record does indi- purposes diagnosis cate, however, information for of medical [the] statements were elicited 803(4).”). meaning treatment within the nothing CRE in the course of treatment. And prosecution, proponent Oldsen holds that the as record [the victim's] indicates that child ‘motive statements, making has the burden of these statements was other than as a establishing admitting patient seeking needing] the foundation for them at least treatment.' [or omitted.]”). exception under an to the rule. [Citation

1458 not admis- physicians were re-direct, the three A.T. to On the 154-56. atR. VII 803(24).4 Rule under sible prosecutor asked impor- the impressed with Finally, I am Kuper that Matthew you Dr. Q Did tell hearsay application of the lady in the Kuper, the tance of care you, Dr. things to bad did in the Su- of the caveat exceptions because doctor? case, where in this opinion preme Court’s (No response.) audible A Kennedy stated: Justice you Q Do remember? to the difficul- must be sensitive Courts (No response.) audible A of al- prosecution upon the ties attendant all eases a In almost leged abusers. child Id. at 159. only eye prosecution’s witness. youth is the to testimony insufficient Thus, A.T.’s evidentiary cannot alter But court “[t]his of importance knew the that she establish might pre- litigants merely because rules Kuper, and to Drs. telling the truth particular class rules in a of fer different to satis- is therefore insufficient Spiegel, and Salerno, 505 U.S. v. cases.” States United under Rule rationale fy selfish interest the 2503, 2507, [322], [317], 112 S.Ct. 803(4). Likewise, the doc- testimony of the (1992). L.Ed.2d 255 Padilla, Beverly A.T.’s of and tors themselves — U.S. -, -, States, Tome United Appendix mother, proof. no such See shows (1995) 696, 705, 130 L.Ed.2d 115 S.Ct. does not the record opinion. Because to this added). (emphasis importance of appreciated the that A.T. show sum, I the other eviden- doctors, concur in while I must con- the telling the truth to majority and in tiary the reaches conclusions statements out-of-court clude that A.T.’s trial, respectfully I for a new the remand under admissible Rule are not the doctors holding that majority’s the from the 803(4). dissent respectfully dissent from I therefore through by A.T. introduced the statements state- those majority’s conclusion that the admissible. testimony the doctors were of ments are admissible argues the government alternative The APPENDIX examining testimony the of three that that pediatrician, testified Kuper, Dr. concerning A.T.’s statements to physicians occasions, Septem- two once I saw A.T. on Rule under them was admissible again in October 1990. then testimony was not ber 1990 and persuaded am that During September 1990 VII R. at 251. under that rule. properly The admissible “in order to visit, A.T. proper Dr. interviewed carefully applies the majority opinion injuries exactly had what oc- testimony ascertain analysis provision to the this under Kuper said that at 251-52. Dr. agree curred.” Id. Ecklebarger, and I with the of Kae room at the time of A.T.’s mother that the out-of-court majority’s conclusion explained doctor her were inad- interview. A.T. to statements made just had reasons, purpose “[A.T.] for same I hearsay. For the missible young with point. at that And turned five made am that the statements convinced 3139, 3150, Wright, testimony, 497 U.S. Ecklebarger’s three circum- As with (1990). Consequently, it could 111 L.Ed.2d phy- surrounding to the A.T.’sstatements stances time the statements were be at the not made, said experience sicians indicate trustworthiness: clear "truthfulness so from [was] A.T.'s physicians interviewing training and surrounding of that the test circumstances victims; non-leading ques- the use child abuse marginal would utili- be cross-examination tions; specificity statements. On ty...." at 3149. As the at hand, made the other as with statements notes, although opinion correctly Wright majority spontane- Ecklebarger, ous, not the statements were challenge admission involved abuse, in time to the were close not Clause, "its the Confrontation arguably child made a time when the were reliability discussion had a to fabricate. motive equally perti- sexual abuse is child victims of Thus, balance, cases Clause clear that nent Confrontation it is far from both on Opinion Majority at 1452 cases." likely telling particularly the truth "was be n. 5. Idaho statements] made.” [her] [were] when always parents Q you I in the children have room. Did talk with her at all about might happen what Id. at 267. if she didn’t—wasn’t completely you honest things? about cross-examination, On defense counsel No, A I didn’t. you [patients] you’re “Do know that asked let VII R. at 299. help Kuper Dr. there kids?” to which “I I replied don’t believe use that term exact- pediatrician, Another Spiegel, Dr. Jean ly, no.” VII R. at 265. Defense counsel examining testified about September A.T. on you then asked “Do ever talk with a child 3, years 1991. A.T. was six old then. IX R. telling?” Kuper truth about Id. Dr. an- Spiegel at 472. Dr. findings said her from “No, part swered I don’t because that is the examination were hyme- consistent with Later, Protective Services.” Id. defense penetration nal vaginal penetration which you counsel asked had no discussion “[a]nd “chronic” nature or had occurred ” telling? with about truth Id. at 267 [A.T.] more than one time. Id. at 473. She testi- added). “No, (emphasis Kuper replied Dr. I fied that it while was difficult to time such added). (emphasis penetrations, did not.” Id. nothing Nor did likely hap- would have any Kuper pened Dr. have with prior discussion A.T.’s the child within the four to six months, telling. mother truth It findings about Id. is clear and that “the are old.” Id. Kuper’s from this and from Dr. the rest of testimony by There was no Spiegel Dr. convey that Dr. did not any about A.T. that the defen- importance telling A.T. the the truth. any dant had committed of these acts. The Thus, Kuper’s testimony nothing Dr. does say very doctor did shy A.T. was satisfy preliminary requirement that the quiet and the doctor asked A.T. where her importance declarant understand the of can- body was touched. She said that “her dor with the doctor. privates breasts were touched and her front touched, were Spiegel]

Dr. and she also told pediatrician, [Dr. Laura another tes- that her poop an bottom where her Sep- tified about examination of A.T. on comes out was touched.” Id. at 509. tember 1990. VII R. at 289-90. There was no testimony by Spiegel any Dr. questioning personal history, the child about about discus- concerning sion with A.T. extremely telling the doctor said A.T. truth or its “was calm importance during in the examination of very friendly the examination and the child. put thing said her father had in her.” Id.

at 292. The doctor from concluded her ex- vaginal opening

amination that the was defi-

nitely larger hymen than normal and the

not intact. 293. The doctor said the approximately years child was five old when MILES, Jr., Vernard Petitioner- she saw her. Her conclusion was that she Appellant, “definitely penile penetration had had in her vaginal area.” Id. at 294. DORSEY, Warden; Attorney Donald A.

Dr. Reich was asked about whether she Mexico, General of the New State of had importance discussed with Respondents-Appellees. giving truthful answers: Q you Did talk to her at all about the No. 94-2055.

importance telling you? of truth Appeals, United States Court of No, A I talk didn’t to her about that. Tenth Circuit. Q you get any Did sense that she —if Aug. anyone else had talked with about important you that it was to tell the truth? No,

A particular issue didn’t come

up. get any I didn’t sense of that. R.H. Here the notes “must show that under- 803(4) prem- speaking exception to a that the of Rule “is stood he was trained upheld under the treat 1. The court in White the defendant's con- statement is admissible medical grounds exception depend solely viction on the erroneous admis- on the ment does not sion of the statements was harmless error. 11 person asking questions, intent of the but also F.3d at 1451. respondent on whether the understands herself purposes providing medical be information for is identical to the federal Minn.R.Evid. added.)); Morgan (Emphasis treatment." rule. Foretich, (4th Cir.1988) 846 F.2d 951-52 (Powell, (ret.), concurring part J. and dissent Territory Ignacio, People 3. See also Guam v. (“whether (“[tjhere Cir.1993) ing part) is no evidence in the record 613 n. 3

Case Details

Case Name: United States v. Matthew Wayne Tome

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 31, 1995

Citation: 61 F.3d 1446

Docket Number: 92-2104

Court Abbreviation: 10th Cir.