throbber
Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`August 30, 2024
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`Clerk of Court
`FOR THE TENTH CIRCUIT
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`MICHAEL TRACY MCFADDEN,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 23-1089
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:19-CR-00243-GPG-1)
`_________________________________
`
`Ty Gee (Meredith O’Harris with him on the briefs) of Maddon, Morgan and
`Foreman, P.C., Denver, CO, for Defendant - Appellant.
`
`J. Bishop Grewell, Assistant United States Attorney (Cole Finegan, United
`States Attorney, with him on the brief), Denver, CO, for Plaintiff - Appellee.
`_________________________________
`
`Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges.
`_________________________________
`
`PHILLIPS, Circuit Judge.
`_________________________________
`
`A jury convicted Michael Tracey McFadden of five criminal counts
`
`related to McFadden’s sexual assault of two minors. The district court
`
`sentenced him to serve concurrent life sentences on each count. McFadden now
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`appeals his conviction and sentence. He contends that various evidentiary
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 2
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`errors at trial, plus a mistake in his Guidelines calculation, require a new trial
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`and resentencing. We disagree and so, exercising our jurisdiction under 28
`
`U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
`
`BACKGROUND
`
`I.
`
`Factual Background
`
`Two boys native to Grand Junction, Colorado were abused throughout
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`their childhoods by the defendant, Michael Tracy McFadden. Both boys, known
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`to us as J.W. and K.W., spent much of their youth playing and sleeping over at
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`McFadden’s house. McFadden is distantly related to J.W. on J.W.’s mother’s
`
`side. McFadden and K.W. are unrelated, but McFadden was a close friend of
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`the W. family. McFadden stepped up to help look after the boys because J.W.’s
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`mother was battling addiction and an abusive relationship, while K.W.’s
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`parents generally struggled to make ends meet. McFadden ingratiated himself
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`with the boys and their families through his generosity. He provided necessities
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`(clothing, food, rides to school, doctor appointments) and luxuries (BMX bikes,
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`paintball guns, trampolines, videogames) that the boys’ families could not
`
`afford.
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`J.W. lived with McFadden for the better part of six years, from roughly
`
`ages six to twelve. When J.W. was about eleven and K.W. was about ten, K.W.
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`began regularly going over to McFadden’s house to play with J.W. and J.W.’s
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`siblings. K.W. began spending most weekends there and would frequently stay
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`the night. During these overnights, both boys slept with McFadden in his bed.
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`Once the boys would fall asleep, McFadden would assault them. When
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`McFadden moved to a different home in Grand Junction, J.W. went with him,
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`and K.W.’s family moved to a neighboring property. K.W. continued to spend
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`significant time playing with J.W. and sleeping over at McFadden’s house. The
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`same pattern of abuse continued there. To facilitate his abuse, McFadden
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`routinely gave the boys melatonin in high doses before bedtime.
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`Though McFadden’s Colorado homes were sites of repeated abuse,
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`McFadden also assaulted both boys across state lines. McFadden was a truck
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`driver, so he regularly traveled on interstate highways picking up and
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`delivering loads. He often invited J.W. and K.W. to accompany him on these
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`trips. On one such trip to Arizona, when J.W. was about nine, McFadden
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`assaulted him during the night while J.W. slept next to McFadden on the
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`mattress in the semi-truck’s sleeper cab. On another trip from Telluride, CO to
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`Farmington, NM in December 2010, when J.W. was ten, McFadden once again
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`assaulted J.W. while the two slept in the sleeper cab of McFadden’s semi-truck.
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`Both times, McFadden penetrated J.W.’s anus while J.W. pretended to sleep.
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`These assaults caused J.W. to feel pressure and a wet sensation in his rear.
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`In December 2012, McFadden took K.W. and K.W.’s brothers on a semi-
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`truck trip from Idaho to Nebraska. At the time, K.W. was eleven, his older brother
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`(S.W.) was eighteen, and his younger brother (L.W.) was nine. S.W. slept across
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`the driver and passenger seats, while K.W., L.W., and McFadden shared the
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`mattress in the sleeper cab behind the front seats. During the night, McFadden
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`pulled down K.W.’s pants and inserted his penis into K.W.’s anus, which K.W.
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`said “hurt a lot.” ROA vol. VI, at 183.
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`Around the time of the Nebraska trip, other children started coming
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`forward with allegations that McFadden had abused them. From these
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`accusations, Detective Edward Prescott with the Grand Junction Police
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`Department obtained a warrant to arrest McFadden, who was still with the W.
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`boys in Nebraska. The local Nebraska police executed the warrant and arrested
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`McFadden on January 3, 2013. The W. boys’ mother picked them up at a
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`Nebraska truck stop and drove them back to Colorado. On the ride home,
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`K.W.’s mother asked K.W. if McFadden had ever “done anything” to him, and
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`K.W. said no. Once they returned to Colorado, K.W.’s mother arranged for
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`K.W. to meet with a child counselor. That meeting was the first time K.W.
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`accused McFadden of sexually abusing him. The next day, January 16, 2013,
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`Detective Prescott conducted a forensic interview with K.W., during which
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`K.W. detailed McFadden’s history of abusing him. That interview was recorded
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`on video.
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`The parties disagree about when J.W. first accused McFadden of sexual
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`abuse.1 McFadden insists that J.W. outcried before K.W. talked to Detective
`
`
`1 The government has a motion pending before this court to supplement
`the record on appeal with an exhibit list from trial, which it contends will
`refute McFadden’s assertion that K.W.’s outcry was tainted by J.W.’s earlier
`admission of abuse. The government maintains that J.W. accused McFadden
`after K.W.’s interview on January 16, 2013, and so K.W.’s interview was
`(footnote continued)
`
`
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`Prescott, the government maintains that it was after. Regardless, J.W. came
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`forward in early 2013 and told Detective Prescott that McFadden had been
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`sexually abusing him for many years.
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`Years later, in 2018, J.W. and K.W. were interviewed again about
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`McFadden’s assaults. The FBI conducted K.W.’s interview during his stint at a
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`juvenile correctional facility. The audio of that interview was recorded.
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`II.
`
`Procedural Background
`
`McFadden was convicted in Colorado state court on nineteen counts of
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`child-sex abuse.2 McFadden appealed that conviction and won. The Colorado
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`Court of Appeals determined that McFadden’s speedy-trial rights had been
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`violated, and so the court dismissed all charges. The Colorado Supreme Court
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`denied certiorari, and McFadden was released. People v. McFadden, No.
`
`17SC573, 2018 WL 827272 (Colo. Feb. 12, 2018).
`
`
`untainted by his friend’s influence. McFadden opposes this motion. The
`government’s arguments do not compel us to exercise our power to supplement
`the appellate record. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th
`Cir. 2000). Even if McFadden is correct that J.W.’s forensic interview occurred
`before K.W.’s, this does not impact our deferential review of the district
`court’s trustworthiness analysis under Rule 807(a)(1), see Discussion § I.A.1,
`infra. The exhibit list that the government seeks to admit would have no effect
`on our decision. The government’s motion is denied.
`
` The Colorado Court of Appeals opinion and the entire state-court case
`record is sealed. See People v. McFadden, 2013-CR-27, 2013-CR-339, 2013-
`CR-342 (Mesa Cnty. Dist. Ct. 2015); People v. McFadden, No. 15CA1925
`(Colo. Ct. App. June 22, 2017).
`
` 2
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`About a year after his release, a federal grand jury charged McFadden
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`with five criminal counts related to his sexual abuse of J.W. and K.W. across
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`state lines. Counts One and Three were charged under 18 U.S.C. § 2241(c) for
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`crossing state lines with intent to engage in a sexual act with a minor under the
`
`age of twelve, and Counts Two, Four, and Five were charged under 18 U.S.C.
`
`§ 2423(a) for transportation of a minor with intent to engage in sexual activity.
`
`Before trial, the government filed a notice of intent to introduce the video
`
`recording from K.W.’s 2013 forensic interview with Detective Prescott under
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`Federal Rule of Evidence 807, the residual exception to hearsay. In its notice,
`
`the government identified three recorded statements for admission at trial:
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`(1) K.W.’s statement regarding McFadden’s assaults; (2) K.W.’s statement
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`about the melatonin that McFadden gave him; and (3) K.W.’s statement that,
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`one time, he saw McFadden touch J.W. under a blanket. The government
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`argued that these statements met Rule 807’s requirements because the
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`statements were “supported by sufficient guarantees of trustworthiness” and
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`were “more probative,” given that K.W.’s 2013 statements were made closer in
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`time to the alleged assaults. ROA vol. I, at 157–59. McFadden objected to the
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`government’s notice. The district court then held a pretrial evidentiary hearing,
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`in part to assess the 2013 video’s admissibility under Rule 807. After hearing
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`arguments from both sides, the court reserved its ruling on the Rule 807 issue
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`until trial.
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`At trial, the government examined K.W. about the alleged assaults.
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`Asking whether McFadden had penetrated K.W. with his penis, K.W. initially
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`said that McFadden had “tried to.” ROA vol. VI, at 182–83. The government
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`zeroed in: “When you say he tried to put his penis in you, did he put his penis
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`into your butt?” Id. at 183. K.W. then answered, “Yes.” K.W. further confirmed
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`that, “Yes,” he felt pressure against his anus from McFadden and that it “hurt a
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`lot” “because [he] was little at the time.” Id. In testifying about the Nebraska
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`semi-truck trip, K.W. said that he “slept right next to Mike” and identified the
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`government’s exhibit (a photo of the semi-truck’s sleeper cab mattress) as the
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`location where McFadden penetrated him. Id. at 187.
`
`After this testimony, the government moved under Rule 807 to admit the
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`2013 forensic-interview video recording, in which K.W. makes more direct
`
`statements to Detective Prescott about McFadden’s penetrative assault. The
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`district court admitted the evidence under Rule 807. The court agreed with the
`
`government that Rule 807’s admissibility requirements were satisfied and that
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`“[i]t was apparent that [K.W.] only answered with prompting and he was
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`equivocal about the penetration, which he was not in the video.” Id. at 195.
`
`Concluding that “the video evidence is more probative on the point for which it
`
`is offered than any other evidence that the Government can obtain through
`
`reasonable efforts,” the court admitted the video recording. Id. McFadden
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`objected. Over McFadden’s objection, the jury was shown the 2013 video
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`recording of K.W.’s forensic interview, but the video was not given to the jury
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`to use during deliberations. A transcript of the interview was distributed to the
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`jury as an aid while they watched the video, but the transcript was not given to
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`the jury to reference during deliberations.
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`After the jury watched the 2013 video recording, K.W. was cross-
`
`examined by defense counsel. During cross, defense counsel used the transcript
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`from K.W.’s 2018 FBI interview to impeach him. Defense counsel then moved
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`to admit the audio recording of K.W.’s 2018 interview with the FBI. The court
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`denied the defense’s motion because, unlike the government, defense counsel
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`had given no notice of his intent to introduce Rule 807 evidence. So the court
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`rejected the 2018 audio recording as inadmissible hearsay.
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`Over the course of McFadden’s five-day trial, the jury heard testimony
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`from the following witnesses: J.W.; J.W.’s mother; K.W.; K.W.’s mother; S.W.
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`(K.W.’s older brother); two of McFadden’s former bosses from the construction
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`company and trucking company where he worked; the Nebraska police officer
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`who arrested McFadden; Detective Prescott; Sue Goebel, the nurse who
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`performed a SANE (sexual assault nurse examiner) exam on J.W. in March
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`2013; and a child therapist who offered expert testimony about the
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`psychological impact of sexual abuse on children. Most of this testimony is
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`unchallenged on appeal, except for two instances of alleged vouching, which
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`we discuss later in this opinion.
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`The jury found McFadden guilty on all counts, and the district court
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`sentenced McFadden to serve concurrent life sentences on each count. The
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`presentence report calculated McFadden’s sentence by splitting the five
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`convicted counts into two groups, one for each child victim. Counts One and
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`Two, based on the abuse of K.W. in Nebraska comprised the first group, and
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`Counts Three, Four, and Five, based on the abuse of J.W. on the trips to
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`Arizona and New Mexico comprised the second group. The base level for each
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`group was 28, according to U.S.S.G. § 2G1.3(a)(3), the guideline for violations
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`of 18 U.S.C. § 2423(a). The base level was then increased by 14 levels under
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`various specific offense characteristics. McFadden challenges one of these
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`increases on appeal, the two-level enhancement imposed under
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`§ 2G1.3(b)(2)(B) for “unduly influenc[ing] a minor to engage in prohibited
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`sexual conduct.” McFadden timely appealed his conviction and sentence.
`
`DISCUSSION
`
`
`
`McFadden contends that multiple errors committed at trial demand
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`reversal of his conviction and that an error in his Guidelines calculation
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`requires resentencing. We agree with McFadden that the district court erred in
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`admitting the 2013 forensic-interview video recording under Rule 807, but this
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`error was harmless. Because the district court made no other errors, we affirm.
`
`I.
`
`Rule 807
`
`The residual-hearsay exception under Rule 807 is a catchall to the
`
`recognized hearsay exceptions housed in Rules 803 and 804—present sense
`
`impressions, excited utterances, and the like. See Idaho v. Wright, 497 U.S.
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`805, 817 (1990) (explaining that the residual rule “accommodates ad hoc
`9
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 10
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`instances” where a statement may not “otherwise fall[] within a recognized
`
`hearsay exception” but is “nevertheless . . . sufficiently reliable to be
`
`admissible at trial”).
`
`Rule 807 states:
`
`In General. Under the following conditions, a hearsay
`statement is not excluded by the rule against hearsay even if
`the statement is not admissible under a hearsay exception in
`Rule 803 or 804:
`
`(a)
`
`
`
`(1)
`
`
`(2)
`
`supported by
`is
`statement
`the
`sufficient
`guarantees of trustworthiness—after considering
`the totality of circumstances under which it was
`made and evidence, if any, corroborating the
`statement; and
`
`it is more probative on the point for which it is
`offered
`than any other evidence
`that
`the
`proponent can obtain through reasonable efforts.
`
`
`(b) Notice. The statement is admissible only if the proponent
`gives an adverse party reasonable notice of the intent to offer
`the statement—including its substance and the declarant’s
`name—so that the party has a fair opportunity to meet it. The
`notice must be provided in writing before the trial or hearing—
`or in any form during the trial or hearing if the court, for good
`cause, excuses a lack of earlier notice.
`
`
`Fed. R. Evid. 807 (emphasis added).
`
`
`“The residual exception ‘should be used only in extraordinary
`
`circumstances.’” United States v. Burgess, 99 F.4th 1175, 1183 (10th Cir. 2024)
`
`(quoting United States v. Dalton, 918 F.3d 1117, 1133 (10th Cir. 2019)). Such
`
`circumstances exist when the court is “satisfied that the evidence offers
`
`guarantees of trustworthiness and is material, probative and necessary in the
`
`
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 11
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`interest of justice.” Id. (quoting Dalton, 918 F.3d at 1133). We interpret the
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`residual exception with “caution” so that it does not “swallow the entirety of
`
`the hearsay rule.” United States v. Hammers, 942 F.3d 1001, 1011 (10th Cir.
`
`2019).
`
`McFadden argues that the district court abused its discretion in applying
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`Rule 807 to two pieces of evidence offered at trial: (1) a video recording of
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`K.W.’s 2013 forensic interview with Detective Prescott, introduced by the
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`government; and (2) an audio recording of K.W.’s 2018 interview with the FBI,
`
`offered by the defense. Under Rule 807, the district court admitted the 2013
`
`video recording but excluded the 2018 audio recording. McFadden contends
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`both rulings were error.
`
`We review such evidentiary decisions for an abuse of discretion. United
`
`States v. Hay, 95 F.4th 1304, 1318 (10th Cir. 2024). We do so recognizing that
`
`a legal error constitutes an abuse of discretion per se. United States v. Geddes,
`
`71 F.4th 1206, 1214 (10th Cir. 2023). “[L]egal conclusions about the Federal
`
`Rules of Evidence” are subject to de novo review. Hay, 95 F.4th at 1318.
`
`A.
`
`The 2013 Video Recording
`
`To be admissible under the residual-hearsay exception, the offered
`
`evidence must contain “sufficient guarantees of trustworthiness” and be “more
`
`probative on the point for which it is offered than any other [reasonably
`
`attainable] evidence.” Fed. R. Evid. 807(a). “[T]he party offering the evidence
`
`bears” the “heavy burden” of showing that both prongs are met. United States
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 12
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`v. Trujillo, 136 F.3d 1388, 1396 (10th Cir. 1998). The government offered the
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`2013 video recording, so it bore the burden of satisfying Rule 807’s two-
`
`pronged admissibility standard. See id.
`
`1.
`
`The district court’s ruling on trustworthiness was not
`error.
`
`In child-sex-abuse cases, there are various factors that courts consider in
`
`deciding whether a child victim’s hearsay statement is admissible under Rule
`
`807. See Wright, 497 U.S. at 821. These include spontaneity, consistency
`
`between repeated allegations, mental state of the child, use of age-appropriate
`
`terminology, and lack of motive to fabricate. United States v. Tome, 61 F.3d
`
`1446, 1452–53 (10th Cir. 1995) (citing Wright, 497 U.S. at 821). Rule 807 also
`
`instructs courts to evaluate “the totality of circumstances under which [the
`
`statement] was made.” Fed. R. Evid. 807(a)(1). A totality analysis might
`
`implicate the training and expertise of the interviewer, the interviewer’s use of
`
`open-ended rather than leading questions, the time between the alleged abuse
`
`and the hearsay statements, and the declarant child’s age.3 See Tome, 61 F.3d at
`
`
`3 After the 2019 amendments to Rule 807 (formerly Rule 803(24)) we
`should also consider corroborating evidence that bolsters the trustworthiness of
`a hearsay statement. Fed. R. Evid. 807(a)(1); see Burgess, 99 F.4th at 1184 n.5
`(supplanting Tome’s rule “that corroborating evidence d[oes] not bear on the
`trustworthiness of a hearsay statement” because “the 2019 amendments to Rule
`807 . . . specifically require the court to consider corroborating evidence in the
`trustworthiness enquiry” (cleaned up)). But in this case there is no such
`evidence. The government argues that S.W.’s testimony “corroborat[ed]
`[K.W.’s] account of the sleeping arrangements” in the semi-truck and K.W.’s
`recollection that “(S.W.) did not wake up during the night.” ROA vol. I, at 158.
`(footnote continued)
`
`
`
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`1453; see also United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993)
`
`(affirming that the hearsay testimony was admissible under Rule 807 because
`
`the child spoke to her mother about the alleged assault within a day of the
`
`incident, the child was “still suffering pain and distress from the assault” when
`
`she spoke about it, and the child’s “youth” favored reliability (citation
`
`omitted)). Together, these factors guide the determination for whether the child
`
`was “particularly likely to be telling the truth when the statement was made.”
`
`Tome, 61 F.3d at 1453 (quoting Wright, 497 U.S. at 822). The goal is to ensure
`
`that a child’s hearsay statement admitted under the residual-hearsay exception
`
`carries the same “particularized guarantees of trustworthiness” that would
`
`attend any other hearsay statement admissible under a “firmly rooted” hearsay
`
`exception. Wright, 497 U.S. at 821.
`
`The government’s notice of intent gave several reasons why K.W.’s 2013
`
`video statements were sufficiently trustworthy: (1) the consistency of K.W.’s
`
`statements about the assaults; (2) the interview’s proximity in time to the
`
`alleged Nebraska assault (about two weeks); (3) K.W.’s use of childlike
`
`terminology (i.e., describing penises and anuses as “no-no’s”); (4) K.W.’s
`
`
`But that testimony doesn’t corroborate the assault, and it doesn’t lend any
`greater reliability to K.W.’s story. In fact, McFadden argued at trial that S.W.’s
`testimony credited his version of events because, in McFadden’s view, it’s
`unrealistic that S.W. could have been sleeping mere feet away from McFadden
`and the younger brothers and yet not have heard or seen any of signs of abuse.
`For these reasons, we don’t view S.W.’s testimony as corroborative evidence
`that must be considered in the trustworthiness inquiry.
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`particular and detailed descriptions of the assaults; (5) K.W.’s lack of
`
`motivation to fabricate; and (6) the interview being recorded on video, which
`
`allowed the jury to assess K.W.’s credibility.4 And at the pretrial evidentiary
`
`hearing, the government presented testimony from Detective Prescott to explain
`
`the trustworthy circumstances under which he conducted K.W.’s forensic
`
`interview.
`
`The district court was particularly persuaded by Detective Prescott’s
`
`testimony. In issuing its ruling at trial, the court observed that “Detective
`
`Prescott went through his experience, his training on forensic interview
`
`techniques,” and his “attempt[] to determine that the witness [knew] the
`
`difference between a truth and a lie.” ROA vol. VI, at 195. From those
`
`observations, the district court concluded that the 2013 video “weighs in favor
`
`of a finding of trustworthiness.” Id. The court added that it had “carefully
`
`reviewed the video in light of relevant facts . . . under Rule 807 and Idaho v.
`
`Wright, 497 U.S. 805.” Id. The court then ruled that the 2013 video was
`
`sufficiently trustworthy under Rule 807(a)(1).
`
`
`4 In its response brief, the government again makes the point that K.W.’s
`2013 forensic interview is more trustworthy because it was recorded. Neither
`Wright nor Tome list the recording of a statement as a factor that bears on its
`trustworthiness. We agree with other courts that have found this detail
`unpersuasive. See, e.g., United States v. Bruguier, 961 F.3d 1031, 1033 (8th
`Cir. 2020) (“Although a recording ensures a declarant’s statement is faithfully
`reproduced, it provides little assurance that the statement was truthful and
`reliable when spoken.”).
`
`
`
`14
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 15
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`Properly admitting a child’s hearsay statement under the catchall
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`exception requires the district court “not . . . merely to find an absence of
`
`evidence that the statement was unreliable,” but to find that the child “was
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`particularly likely to be telling the truth.” Burgess, 99 F.4th at 1184 (citation
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`omitted). Though the court has “leeway” in considering the “appropriate
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`factors” in its Rule 807(a)(1) analysis, it must consider those “factors [that]
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`relate to whether the child declarant was particularly likely to be telling the
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`truth.” Wright, 497 U.S. at 822. Once the court identifies the relevant factors,
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`given the facts and arguments before it in a particular case, the court must then
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`decide whether those factors unequivocally demonstrate the statement’s
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`trustworthiness. See Tome, 61 F.3d at 1453. If the “circumstances surrounding
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`[a child’s] statement . . . are equivocal” as to trustworthiness, then the
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`“statement [is] . . . inadmissible hearsay.” Id.
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`“[H]earsay determinations are particularly fact and case specific,” so “we
`
`afford heightened deference” to the district court’s evidentiary rulings to admit
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`hearsay evidence. United States v. Lovato, 950 F.3d 1337, 1341 (10th Cir.
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`2020) (quoting Trujillo, 136 F.3d at 1395). Because the district court stated that
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`it considered the “relevant facts . . . under Rule 807 and Idaho v. Wright,” ROA
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`vol. VI, at 195, before it admitted the 2013 video, we take the court at its word,
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`see Lovato, 950 F.3d at 1341. Under this highly deferential review, the district
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`court did not err in determining that the 2013 video carried sufficient
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`guarantees of trustworthiness under Rule 807(a)(1).
`15
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 16
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`But we would be remiss not to point out that the district court’s reasoning
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`in ruling on the government’s Rule 807 motion was wanting. Before admitting
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`the video, the court should have made findings on the record for each of the
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`relevant factors under Wright/Tome that it considered in evaluating the video
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`statements’ trustworthiness. The district court is not typically “required to
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`make a finding on the record as to each of the Rule 807 [factors],” but only so
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`“long as the record demonstrates that the district court considered the relevant
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`factors.” United States v. Smith, 591 F.3d 974, 980 (8th Cir. 2010) (emphasis
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`added). And especially “[w]hen a statement is admitted under the catchall, the
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`court should make an on-the-record finding that the requirements [of Rule 807]
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`have been satisfied.” 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
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`Evidence § 8:140 (4th ed.) (August 2023 update); see United States v. Palacios,
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`556 F.2d 1359, 1363 n.7 (5th Cir. 1977) (“The [Senate Judiciary] Committee
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`. . . stated that the special facts and circumstances which lead the trial judge to
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`allow an exception under Rule 803(24) [(now 807)] should be stated in the
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`record.”).
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`At the pretrial hearing, the court enunciated the cluster of factors
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`pertinent to Rule 807(a)(1)’s trustworthiness inquiry, including spontaneity and
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`use of age-appropriate language, but then declined to address these factors in
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`its ruling on the record. This omission would be more acceptable if the record
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`absolutely supported the court’s decision to admit the video. See Smith, 591
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`F.3d at 980; see, e.g., Burgess, 99 F.4th at 1184 (recognizing that, even beyond
`16
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`

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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 17
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`the “relevant” factors that the district court considered in assessing
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`trustworthiness, “other guarantees of trustworthiness” were apparent from the
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`record that additionally supported the court’s ruling). But here, those factors
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`weigh against the video’s trustworthiness, and yet the court offered no analysis
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`or findings on these points. It instead confined its discussion to Detective
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`Prescott’s experience, the nature of his interview techniques, and his efforts “to
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`determine that the witness did know the difference between a truth and a lie.”
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`ROA vol. VI, at 195. Based on that, the court found that “K.W.’s statement
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`[wa]s supported by sufficient indicia of reliability such as to be admissible with
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`respect to the first prong of the Rule 807 inquiry.” Id. at 195–96. Our concern
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`is that most forensic interviews will likely be conducted by qualified law-
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`enforcement agents, trained to ask the right questions in the right way so as to
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`render every forensic interview inherently trustworthy by the district court’s
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`standards. The court focused almost singularly on these elements of K.W.’s
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`2013 interview, without paying equal mind to the factors that diluted its
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`trustworthiness. See, e.g., Tome, 61 F.3d at 1453 (weighing equally the factors
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`that supported and the factors that undermined the hearsay statement’s
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`trustworthiness). From our perspective, several factors potentially subverted the
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`trustworthiness of the 2013 video statements, which the district court never
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`addressed on the record.
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`First, K.W.’s statements to Detective Prescott were not spontaneous.
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`K.W. knew that the purpose of the interview was to talk about McFadden’s
`17
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`

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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 18
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`inappropriate behavior with children. And unlike the child victim in Burgess,
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`K.W. never made any spontaneous allegations about McFadden’s abuse before
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`his interview. See 99 F.4th at 1184 (affirming the admissibility of Rule 807
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`evidence partly because the child’s recorded statements were consistent with
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`spontaneous admissions she had made before the forensic interview). When a
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`child is brought into a forensic interview knowing that the purpose of the
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`interview is to discuss alleged abuse, this court has concluded that those
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`interview statements lack spontaneity. See Tome, 61 F.3d at 1453 (noting that
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`the child’s statement to a caseworker wasn’t spontaneous because the child
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`knew the purpose of the meeting was to talk about “what defendant had done to
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`her”). And the government doesn’t contest that K.W.’s 2013 statements lacked
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`spontaneity.
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`Second, though K.W. used some age-appropriate terminology in his
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`descriptions of McFadden’s assaults, he also used sophisticated language
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`beyond his years—for instance, stating that McFadden has “a disease and it
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`makes him like little children” and that McFadden was “overdosing” the
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`children with melatonin. ROA vol. I, at 171, 193. Not only does some of
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`K.W.’s language suggest adult intervention, but the record substantiates that
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`K.W. spoke with several adults about McFadden before his interview with
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`Detective Prescott, including his mother and a child counselor. This type of
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`intervention could undermine the trustworthiness of a child’s out-of-court
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`statements. See United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993)
`18
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`Appellate Case: 23-1089 Document: 010111103175 Date Filed: 08/30/2024 Page: 19
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`(instructing the district court to consider on remand whether evidence of “prior
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`interrogation, prompting, or manipulation by adults” of the child victim
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`impacted the spontaneity of the child’s admission of abuse, making spontaneity
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`“an inaccurate indicator of trustworthiness” (citation omitted)). More still, the
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`taint of adult influence was McFadden’s principal argument against the video’s
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`admission in his objection to the government’s notice of intent and at the
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`pretrial evidentiary hearing, yet the court didn’t address this point in ruling on
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`the motion at trial. We can’t know for sure which aspects of K.W.’s video
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`statements were genuine and which, if any, were the product of outside adult
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`influence. But it was the district court’s job to grapple with that possibility on
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`the record as it “relate[d] to whether [K.W.] was particularly likely to be telling
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`the truth.” Wright, 497 U.S. at 822.
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`Third, the government stated in its notice of intent that the consistency
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`between K.W.’s 2013 interview statements and his state-trial testimony make
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`the video statements more reliable.

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