Abram v. Gerry

United States Court of Appeals
For the First Circuit
No. 09-1820
SCOTT ABRAM,
Plaintiff, Appellant,
v.
RICHARD GERRY, Warden, New Hampshire State Prison,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. LaPlante, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Paul J. Garrity for appellant.
Ann M. Rice, Associate Attorney General, with whom Michael
A. Delaney, Attorney General, was on brief, for appellee.
February 24, 2012
HOWARD, Circuit Judge. Following a jury trial in New
Hampshire Superior Court, Scott Abram was convicted of twenty-one
counts of aggravated felonious sexual assault against his two
stepchildren, four counts of endangering the welfare of a child and
one count of indecent exposure and lewdness.
After exhausting his direct appeals, Abram petitioned for
a writ of habeas corpus in the United States District Court for the
District of New Hampshire pursuant to 28 U.S.C. § 2254. Abram
argued that the state trial court violated his rights under the
Sixth Amendment Confrontation Clause by prohibiting him from cross-
examining his stepchildren regarding their accusations that he had
also abused their younger siblings. The district court denied the
petition. We affirm.
I.
When a federal court reviews a state court conviction on
habeas review, "any state court factual findings are presumed to be
correct." Clements v. Clarke, 592 F.3d 45, 47 (1st Cir. 2010).
Accordingly, we briefly sketch the relevant facts underlying
Abram's conviction and the accusations Abram sought to introduce at
trial, drawing liberally from the district court's decision in
Abram v. Warden, No. 07-cv-272-JL, 2009 U.S. Dist. LEXIS 43141(D.N.H. May 20, 2009), which in turn draws from the New Hampshire
Supreme Court's decision in State v. Abram, 903 A.2d 1042 (N.H.
2006).
-2-
In 1997, Abram married Evelyn Towne, who had three
children: a daughter, A.A., and two sons, C.A. and K.A. Abram and
Towne then had two children together, M.T. and J.T. On November 4,
2002, A.A. and C.A. told their mother that Abram had been sexually
abusing them for a long time.1 The children reported that Abram
sexually assaulted them and forced them to engage in sexual conduct
with each other. Both claimed that Abram had anally penetrated
them, and they also accused him of anally penetrating their younger
brothers, K.A. and M.T.2 When questioned by investigators,
however, the two younger brothers denied that the alleged abuse
occurred.3
Prior to trial, the government filed a motion in limine
to preclude the defendant from eliciting any testimony regarding
the older siblings' accusations that Abram abused K.A. and M.T.
The state anticipated that Abram would raise these accusations --
and K.A.'s and M.T.'s denials -- on cross-examination in order to
impeach A.A.'s and C.A.'s credibility. The government argued that
1
A.A. and C.A. made similar allegations in 1999. After the
children had given formal statements describing the abuse, however,
their mother called the police to say that the children had
recanted.
2
The assaults and abuse are described in greater detail in
Abram, 903 A.2d at 1044.
3
M.T. told investigators that he had been touched on his
penis and buttocks once, and that he had seen his father masturbate
on multiple occasions. Neither boy indicated that he had been
anally penetrated, however.
-3-
the court should not permit any questioning about the accusations
because Abram could not establish that the allegations were
"demonstrably false." It relied on State v. Gordon, 770 A.2d 702(N.H. 2001) and State v. White, 765 A.2d 156 (N.H. 2000) for the
proposition that under New Hampshire law, the defendant could
"introduce a victim's prior allegation of sexual assault for
impeachment purposes by showing that such allegations were
demonstrably false, which means clearly and convincingly untrue."4
In his written objection to the state's motion, Abram
offered evidence that, he contended, proved the falsity of A.A. and
C.A.'s allegations regarding their younger siblings. He emphasized
that physical examinations of K.A. and M.T. in 2002 revealed no
evidence of physical abuse, and that both K.A. and M.T. had
repeatedly denied the sexual abuse in interviews with
investigators. Abram also pointed out that A.A., in her 2002
statement to police, mentioned that she had observed Abram abusing
4
The New Hampshire Supreme Court later revisited this
standard in State v. Miller, 921 A.2d 942 (N.H. 2007). Miller
overruled Gordon to the extent that Gordon construed White "to
require a defendant to demonstrate clearly and convincingly that
the prior allegations were false before being permitted to cross-
examine the victim about them under [New Hampshire Rule of
Evidence] 608(b)." Id. at 947. The court concluded that state
trial courts have wide discretion to allow or prohibit the cross-
examination of a sexual assault victim concerning a prior allegedly
false allegation of sexual abuse. Id. The "demonstrably false"
standard merely states when courts are constitutionally required to
allow such questioning." Id.-4-
M.T. "three years ago," and yet, in 1999, she had denied ever
seeing Abram abuse M.T.
The trial court found that Abram failed to prove that the
accusations were demonstrably false and granted the state's motion.
The court noted that K.A.'s and M.T.'s physical examinations did
not prove or disprove whether the abuse had occurred.5 It also
observed that although K.A. and M.T. initially denied the
allegations of the assault, there was evidence that undermined the
defendant's claim that these allegations were false. The court
cited medical records from 2002, in which the children's mother
reported that C.A., K.A. and M.T. frequently complained of anal
pain. After K.A. and M.T. were removed from the family home in
2002, a family member discovered K.A. masturbating, and both boys
told family members that Abram had shown them the activity. M.T.
told police that Abram had frequently touched his "penis and bum."
The trial court further found that A.A.'s "minor temporal
inconsistency" in reporting the time line of sexual abuse did not
clearly indicate that the allegations were false, particularly
given her young age at the time she was interviewed.
The jury convicted Abram, and the trial court sentenced
him to a term of 50 to 100 years' imprisonment.
5
Both exams were normal, but the doctor who examined both
K.A. and M.T. stated in her November 13, 2002 report that the fact
that the exams were within normal limits "is to be expected given
the type of abuse reported." The normal exams, she added, "neither
prov[ed] nor negat[ed] sexual abuse."
-5-
On direct appeal, the New Hampshire Supreme Court
considered and rejected Abram's claim that the trial court's
exclusion of the allegations regarding K.A. and M.T. violated
Abram's Sixth Amendment right to confront the witnesses against
him. The court acknowledged that under our holding in White v.
Coplan, 399 F.3d 18 (1st Cir. 2005), New Hampshire's application of
the "demonstrably false" standard could violate the Confrontation
Clause in certain "extreme cases" when its application was
"patently unreasonable." Abram, 903 A.2d at 1053. Abram's was not
an extreme case meriting reversal under White, the state court
held, because Abram could not present similarly compelling evidence
that the allegations at issue were false. It also concluded that
there was a particularly high likelihood in Abram's case that the
excluded evidence would result in a "trial within a trial," because
the allegations involved children who were not victims in the case.
Id.6
Abram renewed his Sixth Amendment claim in his federal
habeas corpus petition. The district court denied Abram's petition
on summary judgment, on the grounds that the New Hampshire Supreme
Court's decision was neither contrary to nor an unreasonable
6
The New Hampshire Supreme Court reversed Abram's convictions
on nine of the twenty-two counts of felonious sexual assault,
holding that the trial court had improperly joined the charges
against Abram in one proceeding. Abram, 903 A.2d at 1051. The
trial court subsequently resentenced Abram to thirty to sixty
years' imprisonment.
-6-
application of federal law under Supreme Court precedent, as
interpreted by White. This appeal followed.
II.
We review de novo the district court's denial of habeas
relief. Clements, 592 F.3d at 51. The Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,
110 Stat. 1214, dictates our standard of review of the New
Hampshire Supreme Court's disposition of Abram's direct appeal.
Where, as here, the state court considered and rejected the
petitioner's claim on the merits, we may grant habeas relief only
if its adjudication:
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). Abram's claim invokes the first prong of this
statute. He contends that he is entitled to habeas relief because
his inability to cross-examine A.A. and C.A. about their
allegations regarding K.A. and M.T. violated the Confrontation
Clause. The state supreme court's determination that it did not,
he avers, constituted an unreasonable application of clearly
established federal law.
-7-
Under section 2254(d)(1), an unreasonable application of
clearly established federal law occurs when the court either
"identifies the correct governing legal rule from the Supreme
Court's cases but unreasonably applies it to the facts of the
particular state prisoner's case or unreasonably extends a legal
principle from the Supreme Court's precedent to a new context where
it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply." John v. Russo,
561 F.3d 88, 96 (1st Cir. 2009).
We begin with the question of what constitutes "clearly
established" federal law on the issue presented. "The
Confrontation Clause of the Sixth Amendment guarantees the right of
an accused in a criminal prosecution 'to be confronted with the
witnesses against him.'" Delaware v. Van Arsdall, 475 U.S. 673,
678 (1986). The Supreme Court has recognized the ability to cross-
examine adverse witnesses as essential to that right. Id. at 678-
79. The right is not absolute, however. Trial courts may place
reasonable limits on cross-examination "based on concerns about,
among other things, harassment, prejudice, confusion of the issues,
the witness' safety, or interrogation that is repetitive or only
marginally relevant." Id. at 679.
Abram relies primarily on our decision in White to argue
that the exclusion of the allegations pertaining to K.A. and M.T.
was an unreasonable application of clearly established federal
-8-
law.7 Although we agree that White articulates the relevant legal
principles under which we evaluate Abram's claim, we conclude that
the state supreme court's application of those principles was not
unreasonable.
In White, the defendant was charged with assaulting the
two young daughters of a friend while visiting their home. 399
F.3d at 20. The girls were the only witnesses who testified about
the alleged assaults, and the government's case hinged on their
credibility. Id. at 20-21. At trial, White sought to cross-
examine both girls about prior accusations of sexual assault that
the girls had made against three other men. A jury had acquitted
one of the men of the charges; no formal charges were brought
against the second; and the police never identified the third. Id.White argued that the girls' prior accusations were similar to
their accusations against him, and that evidence demonstrating the
falsity of these prior accusations thus bore upon the girls'
credibility and showed prior sexual knowledge. Id. at 22.
The trial court prohibited all inquiry into the prior
allegations, and the New Hampshire Supreme Court affirmed White's
conviction. Id. The state supreme court found that White had
7
Although section 2254(d) refers specifically to federal law
"as determined by the Supreme Court," we may also consider lower
federal court decisions, which may state the clearly established
federal law or assist in determining how a general standard applies
to a particular set of facts. Evans v. Thompson, 518 F.3d 1, 10
(1st Cir. 2008).
-9-
proven the falsity of the prior accusations to a "reasonable
probability," but concluded that New Hampshire law required that
the defendant prove the prior accusations were "demonstrably false"
for them to be admitted, which the court equated with clear and
convincing evidence. Id. The district court denied White's habeas
petition.
On habeas review, we interpreted Supreme Court decisions
to require "a balancing of interests depending on the circumstances
of the case" in determining whether a defendant's Sixth Amendment
Confrontation Clause rights had been violated. These interests
included the importance of the evidence to an effective defense,
the scope of the ban involved, and the strength vel non of state
interests weighing against admission of the evidence. Id. at 24.
Applying this test, we determined that although New Hampshire's
"demonstrable falsity" standard was "generally defensible," id.,White represented an "extreme case" in which application of this
standard violated the Confrontation Clause. The facts that made
the case extreme, we observed, were (1) the state supreme court's
finding that the prior accusations were false to a reasonable
probability; (2) the fact that the defendant had virtually no other
way to defend himself; and (3) the similarity between the prior
accusations and those made against White. Id. at 27.
We thus held in White that a defendant may have a Sixth
Amendment right to cross-examine a witness regarding prior
-10-
allegations of sexual assault on a lesser showing than
"demonstrable falsity," but only where multiple factors in
combination weigh heavily in favor of allowing such questioning.
It is significant that the accusations in White, while falling
short of the New Hampshire standard, nonetheless were false to a
high degree of likelihood, i.e., to a "reasonable probability."
Such prior accusations will only be relevant to the victim's
credibility if the jury concludes they are false. Given the
potential harms from pursuing such an inquiry, including the
emotional toll on the victim and confusion over what conduct is
actually before the jury, it is appropriate to require the
defendant to satisfy a high threshold regarding the likelihood of
falsity. We nevertheless recognized in White that, in some
circumstances, New Hampshire's particularly demanding requirement
mayhave to give way to a defendant's Confrontation Clause rights.
None of the factors that prompted us to label White an
"extreme case" is present here. First, unlike the defendant in
White, Abram could not prove that the accusations concerning K.A.
and M.T. were false to a "reasonable probability." On careful
review, the New Hampshire Supreme Court found the evidence of
falsity to be inconclusive at best, Abram, 903 A.2d at 1053, and
-11-
Abram has not challenged that finding under 28 U.S.C.
§ 2254(d)(2).8
Second, the exclusion of the evidence in this case did
not deprive Abram of a defense as it did White. Abram sought to
introduce the allegations in part to argue that the children were
so desperate to escape his discipline that they sought to "scorch
the earth" with incendiary allegations. Even without this
testimony, however, he was able to introduce other evidence
supporting his theory as to why the children had "invented" their
allegations of abuse against him.
Third, whereas in White the prior allegations involved
the same victims as those in the defendant's case, in Abram's case,
the excluded evidence involved different victims who were not
otherwise part of Abram's trial. The New Hampshire Supreme Court
concluded that allowing Abram to raise the excluded evidence would
be more likely to "produce confusion of the issues, likely
resulting in a 'trial within a trial,' and potentially causing
substantial delay." Abram, 903 A.2d at 1053–54. We think this
conclusion was reasonable.
8
Even if Abrams had raised this claim, to the extent that he
challenged a factual finding he would have faced a heavy burden to
show that the state court's determination was unreasonable. Under
AEDPA, the federal habeas court must presume that the state court's
factual findings were correct unless applicants rebut the
presumption with "clear and convincing evidence." 28 U.S.C.
§ 2254(e)(1); Schrivo v. Landrigan, 550 U.S. 465, 473-74 (2007).
-12-
Abram acknowledges these distinctions but nevertheless
contends that the state court misapplied White's three-factor
balancing test. He argues that the importance of the testimony to
the defense and the scope of the prohibition outweighed the
strength of the state interests against admission. The testimony
was particularly important to the defense, he claims, because the
prosecutor's case hinged almost entirely on the credibility of A.A.
and C.A. And he argues that the scope of the ban was absolute, in
that the defense was not allowed to ask any questions about the
allegations pertaining to K.A. and M.T.
Although the New Hampshire Supreme Court did not
explicitly apply this balancing test to the facts in Abram's case,
we may consider Abram's argument on habeas review in determining
whether the state court has "unreasonably refuse[d] to extend a
legal principle to a new context where it should apply." Fratta v.
Quarterman, 536 F.3d 485, 505 (5th Cir. 2008); see also Hurtado v.
Tucker, 245 F.3d 7, 20 (1st Cir. 2001)(observing that while the
reasoning used by the state court is "pertinent," "[t]he ultimate
question on habeas . . . is not how well reasoned the state court
decision is, but whether the outcome is reasonable").
That said, under AEDPA, we may only consider whether, in
applying these factors, the state court's determination -- that
Abram's Confrontation Clause rights were not violated -- was
unreasonable. We may not consider whether we would have reached
-13-
the same conclusion. Where, as here, the federal law in question
sets forth general principles, state courts have considerable
flexibility to exercise their judgment in reaching outcomes. See
Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)("The more general
the rule, the more leeway courts have in reaching outcomes in case-
by-case determinations.").
With this in mind, we do not conclude that the state
supreme court's conclusion was unreasonable. A.A. and C.A.'s
allegations regarding the abuse of their younger siblings would
have only undermined their credibility if those allegations were
indeed false. See White, 399 F.3d at 24 ("Many jurors would regard
a set of similar past charges. . . if shown to be false, as very
potent proof in [the Petitioner's] favor.")(emphasis added); Quinn
v. Haynes, 234 F.3d 837, 846 (4th Cir. 2000) ("A true allegation of
another sexual assault is completely irrelevant to credibility. .
. ."). As we observed above, the state supreme court found that
the evidence neither proved nor disproved the falsity of the
accusations regarding K.A. and M.T. Given that finding, the state
court did not unreasonably apply federal law by excluding this
evidence. We note that other circuits have failed to find Sixth
Amendment violations on similar facts. See Cookson v. Schwartz,
556 F.3d 647, 654 (7th Cir. 2009) (rejecting habeas claim and
distinguishing White, where the petitioner could not establish that
the excluded sexual assault allegation was false to a "reasonable
-14-
probability"); Quinn, 234 F.3d at 847, 851 (rejecting habeas claim
where the denials of the alleged perpetrators constituted the only
evidence that the prior allegations were false); Boggs v. Collins,
226 F.3d 728, 735 (6th Cir. 2000)(rejecting habeas claim where the
state trial court had found that the victim had never made the
alleged prior accusations).9
It would also have been reasonable for the state court to
find that the scope of the exclusion was not absolute, in that
Abram was not prevented from pursuing his theory of the children's
motive to fabricate. We so conclude based on our reading of Van
Arsdall, the Supreme Court case from which White draws this factor
of its three-part test, and the case on which Abram relies in
asserting that the ban in his case was absolute.
9
In so holding, Boggs and Quinn each determined that the
prior accusations constituted "general credibility" evidence rather
than evidence suggesting the alleged victim's bias or a motive to
lie, see Boggs, 226 F.3d at 739-740; Quinn, 234 F.3d at 845, and
relied on Supreme Court language suggesting that "general
credibility" evidence may be afforded less protection under the
Confrontation Clause than evidence pointing to a specific bias or
motive to lie on the part of the victim. See Davis v. Alaska, 415
U.S. 308, 316 (1974); id. at 321 (Stewart, J., concurring).
Abram appears to imply that because he sought to introduce the
excluded evidence to further support his theory of the children's
bias, as well as to directly attack their credibility, the
allegations are entitled to automatic and unconditional
constitutional protection, regardless of the allegations' veracity.
We do not read the Confrontation Clause case law to require this.
Unlike this case, Davis and its progeny all involved "impeachment
based upon credibility-impugning facts that were not in dispute."
Quinn, 234 F.3d at 846.
-15-
In Van Arsdall, the defendant claimed that the state
trial court had violated the Confrontation Clause by not allowing
him to cross-examine a government witness in his murder trial about
the undisputed fact that the witness had agreed to speak with the
government about the murder in exchange for the dismissal of a
drunk-driving charge against him. 475 U.S. at 676. After
acknowledging that trial courts generally "retain wide latitude
insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination," the Supreme Court
held that the trial court's exclusion of this evidence constituted
a constitutional violation because "the trial court prohibited all
inquiry into the possibility that [the government witness] would be
biased. . . ." Id. at 679.
It was reasonable for the New Hampshire Supreme Court to
conclude that the Supreme Court's concern in Van Arsdall was that
the defendant, if not permitted to cross-examine the witness about
his agreement with the government, would be completely unable to
explore the question of bias. Here, on the contrary, Abram
retained the ability to cross-examine the witnesses about their
possible incentives to fabricate the accusations of abuse. As the
Supreme Court has often repeated, "the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
-16-
whatever extent, the defense might wish." See, e.g., Delaware v.
Fensterer, 474 U.S. 15, 20 (1985)(per curiam).
Finally, Abram argues that White left open the
possibility that courts might find other cases "extreme" such that
application of New Hampshire's "demonstrably false" standard would
be patently unreasonable, even if the facts were distinguishable
from those of White itself. He urges us to find that the
application of the "demonstrably false" standard would be
unreasonable here, both because the prior accusations in question
were unusual -- in that they involved the defendant's alleged abuse
of other children, rather than the child victims' allegations
against other potential defendants -- and because both the lack of
physical evidence of the abuse and K.A. and M.T.'s denials
suggested the falsity of the claims.
In contending that his case is "extreme," however, Abram
ignores the important ways in which, as we have explained, this
case differs from White. The mere possibility of falsity that he
raises is significantly different from the finding in White of a
"reasonable probability" that the earlier allegations were false.
Unlike White, Abram was not entirely deprived of his opportunity to
defend. Moreover, the state court in this case supportably saw an
added risk of jury confusion where the excluded evidence concerned
different victims. In sum, the circumstances here, taken together,
-17-
fall short of establishing an "extreme" case meriting the grant of
a writ of habeas corpus.
Having considered all of Abram's arguments, we conclude
that the state supreme court's decision was not an unreasonable
application of clearly established federal law.
III.
For the reasons set forth above, we affirm the judgment
of the district court.
-- Dissenting Opinion Follows --
-18-
TORRUELLA, Circuit Judge (Dissenting). The specter of an
adult, particularly one in a position of trust such as a
stepfather, sexually abusing his minor stepchildren is enough to
incense even the most equanimous person and to wish upon such a
miscreant the full retributive weight of the law. But there lies
the catch: the law. We live in an ordered society, and to keep it
ordered for the benefit of the whole of society, we are bound to
apply the law, not just to do what we believe the abominable person
charged may justly deserve.10
Our Constitution, as our "supreme law,"11 establishes the
minimum rights to which a person accused of a crime is entitled in
defense of his life and liberty. There are virtually no exceptions
to the attachment of these rights by reason of the nature of the
crime charged, even for the most heinous of accusations. Such is
the situation with which we must wrestle in this appeal.
Succinctly put, we are required to determine whether the New
Hampshire courts unreasonably applied clearly established federal
10
As Sir Thomas More stated, "[G]ive the devil benefit of
law." Robert Bolt, A Man for All Seasons: A Play in Two Acts 66
(First Vintage Int'l ed., Vintage Books 1990) (1960).
11
U.S. Const. art. VI, cl. 2. ("This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby . . . .").
-19-
law designed to protect Abram's right to cross-examine his
accusers.
"The Confrontation Clause of the Sixth Amendment
guarantees the right of an accused in a criminal prosecution 'to be
confronted with the witnesses against him.'" Delaware v. Van
Arsdall, 475 U.S. 673, 678 (1986). An essential element of this
right, as recognized by the Supreme Court, is the right to
cross-examine adverse witnesses. Id. at 678-79. However, as the
Court has stated, this is not an absolute right: trial courts may
place reasonable limits on cross-examination "based on concerns
about, among others things, harassment, prejudice, confusion of the
issues, the witness[es]' safety, or interrogation that is
repetitive or only marginally relevant." Id. at 679. Our inquiry
should therefore be directed at determining whether the New
Hampshire trial court's restrictions on the petitioner's right to
confront the witnesses against him are properly within these
constitutional parameters.
Because I cannot in good conscience find that the trial
court's ruling in this case reasonably applied established federal
law when considering the petitioner's Sixth Amendment rights and
because the court engaged in no perceptible balancing of the
considerations required under White, I am forced to conclude that
the petitioner in this case is entitled to the habeas relief he
seeks. See White v. Coplan, 399 F.3d 18, 24 (1st Cir. 2005)
-20-
(finding that prohibiting defendant from cross-examining accusers
regarding prior accusations of sexual assault was an "unreasonable
application" of "clearly established Federal law" and noting that
Supreme Court precedent requires a balancing of interests).
The facts are straightforward and are not in dispute.
Petitioner Scott Abram married Evelyn Towne in 1997 and settled in
Manchester, New Hampshire. Towne brought three children from a
prior marriage to this union, A.A., C.A., and K.A. Thereafter,
Abram and Towne procreated two children of their own, J.T. and M.T.
Sometime in 1999, while the family still resided in
Manchester, A.A. and C.A. made allegations to their mother that
Abram was sexually abusing them. Within two weeks of their giving
formal statements to the Manchester police describing the alleged
abuse, however, the mother called the police to say that the
children -- first C.A. and then A.A. -- had recanted. The
authorities proceeded no further with these matters.
In A.A.'s 1999 statement to the Manchester police, she
claimed that she had "heard [M.T.] and [K.A.] molested in the
bathroom[, and] that she had seen the defendant do it one time to
[K.A.] in 1999." Notwithstanding these allegations, both M.T. and
K.A. consistently denied that Abram penetrated their anuses.
Furthermore, a physical examination of these children by physicians
acting at the request of the authorities failed to reveal any
evidence of sexual abuse, although the doctor opined that a
-21-
negative result of this examination did not necessarily rule out
the possibility of sexual abuse having taken place. The record
shows that M.T. and K.A. were three and four years of age,
respectively, when the 1999 incident allegedly took place.
In 2002, the family moved to Concord, New Hampshire. In
November 2002, when A.A. was thirteen and C.A. was eleven, they
renewed their accusations against Abram, claiming long-term sexual
abuse. They alleged that Abram had sexually assaulted them by
anally penetrating them. A.A. also accused Abram of engaging in
vaginal intercourse with her and of forcing her to engage in sexual
conduct with C.A. During the investigation that ensued, A.A., in
a written statement to investigator Paula Fanjoy, renewed her 1999
accusations against Abram, including the related claims "that she
saw her brothers [M.T. and K.A.] in the bathroom with [Abram] and
saw him place his penis in their butts." A.A. then stated that
"she saw blood on [M.T.'s] diapers three years ago," in 1999.
Medical records from 2002 showed that the children's mother
reported that C.A., K.A., and M.T. frequently complained of anal
pain.
A.A.'s and C.A.'s allegations resulted in Abram's arrest
and indictment on charges of aggravated sexual assault and related
offenses covering the time period between November 2000 and
November 2002. The government again did not pursue any charges
based on the renewed 1999 allegations.
-22-
Before trial, the government filed a motion in limine
seeking to preclude Abram from eliciting any testimony from A.A.
and C.A. regarding their claims that Abram had abused K.A. and M.T.
in 1999. In doing so, the government anticipated that, for the
purpose of impeaching A.A.'s and C.A.'s credibility before the jury
during his cross-examination, Abram would raise the fact that A.A.
and C.A. had made these accusations, notwithstanding that K.A. and
M.T. had denied that Abram sodomized them. It was the government's
position at this hearing that the court should not permit any
questions on this subject because Abram could not establish the
falsity of A.A.'s and C.A.'s allegations to the requisite level
under New Hampshire law.
New Hampshire law requires a showing that prior false
allegations of sexual abuse are "demonstrably false" before an
alleged victim of sexual assault can be cross-examined about prior
allegedly false sexual abuse. See State v. Gordon, 770 A.2d 702(N.H. 2001) (overruled on other grounds by State v. Miller, 921
A.2d 942, 947 (N.H. 2007) (overruling Gordon to the extent it
"require[d] a defendant to demonstrate clearly and convincingly
that the prior allegations were false before being permitted to
cross-examine the victim about them under Rule 608(b)," but
affirming that there is no constitutional requirement to permit
this cross-examination unless the prior allegations were proved to
be demonstrably false)). The New Hampshire Supreme Court has
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interpreted "demonstrably false" to require the defendant to prove
that the allegations were "clearly and convincingly untrue." State
v. White, 765 A.2d 156, 159 (N.H. 2000).
The trial court granted the government's motion and
enjoined Abram from asking any questions on cross-examination about
the allegations and withdrawals concerning K.A. and M.T. The trial
court in essence found that Abram's allegations did not meet the
New Hampshire "demonstrably false" test because (1) the medical
examinations of K.A. and M.T. neither proved nor negated sexual
abuse, (2) M.T. later recanted his initial denial of sexual abuse,
and (3) the temporal inconsistencies in A.A.'s expected testimony
did not clearly indicate that the allegations were false.
The case proceeded to trial before a jury, which found
Abram guilty of twenty-two counts of felonious sexual assault, four
counts of endangering the welfare of a child, and one count of
indecent exposure and lewdness. The trial court sentenced Abram to
50 to 100 years of imprisonment. For reasons not relevant to this
appeal, the New Hampshire Supreme Court reduced this sentence to
thirty to sixty years of imprisonment when it vacated nine of the
twenty-seven total counts for which Abram was convicted. The New
Hampshire Supreme Court affirmed the trial court's ruling
prohibiting any cross-examination on the issue of A.A.'s and C.A.'s
1999 allegations regarding K.A. and M.T. See State v. Abram, 903
A.2d 1042 (N.H. 2006). A petition for habeas corpus in the U.S.
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District Court for the District of New Hampshire alleging violation
of Abram's Sixth Amendment rights fared no better, and this appeal
ensued thereafter.
This case presents a quintessential credibility case.
There was a dearth of physical evidence to prove the government's
case against Abram. The majority of the evidence against Abram
consisted of the testimony of the obviously compelling witnesses he
allegedly abused, in which they related evidence which, if true,
would incense even the most detached and cold-blooded juror. The
accusers' testimony was pitted against Abram's denial that those
incidents took place. The case, and Abram's freedom, turned
entirely on the word of the alleged victims against Abram. It was
thus imperative that the defendant be allowed to test the
reliability of the government's witnesses in any reasonable manner.
"The importance of the right of cross-examination is heightened
when the testimony of the witness in question is the only evidence
directly linking the defendant to the crime." Searcy v. Jaimet,
332 F.3d 1081, 1093 (7th Cir. 2003) (Cudahy, C.J., dissenting)
(citing Olden v. Kentucky, 488 U.S. 227, 233 (1988); Davis v.
Alaska, 415 U.S. 308, 317-20 (1974)).
Abram sought to introduce evidence to show motive or bias
which included the fact that A.A. and C.A. made prior allegations
that Abram had abused their younger siblings, K.A. and M.T. (the
"uncharged allegations"), that both K.A. and M.T. denied that Abram
-25-
abused them, and that Abram was never charged for this alleged
abuse. Federal case law distinguishes between general attacks on
a witness's credibility (evidence offered to support the inference
that the witness has a tendency to lie) and attacks on credibility
aimed at showing "possible biases, prejudices, or ulterior motives
of the witness." Davis, 415 U.S. at 316. "[W]hile 'generally
applicable evidentiary rules limit inquiry into specific instances
of conduct through the use of extrinsic evidence and through
cross-examination with respect to general credibility attacks,
. . . no such limit applies to credibility attacks based upon
motive or bias . . . .'" Redmond v. Kingston, 240 F.3d 590, 593
(7th Cir. 2001) (quoting Quinn v. Haynes, 234 F.3d 837, 845 (4th
Cir. 2000)); White, 399 F.3d at 26 ("Evidence suggesting a motive
to lie has long been regarded as powerful evidence undermining
credibility, and its importance has been stressed in Supreme Court
confrontation cases."). This case law does not imply that any time
a defendant seeks to introduce evidence of prior false allegations
to show the accuser's bias or motive, the allegations are entitled
to unconditional constitutional protection, regardless of the
allegations' veracity. The veracity of the allegations is
relevant. In my opinion, in this case, Abram provided evidence of
falsity to a reasonable probability.
The evidence regarding A.A.'s and C.A.'s 1999 accusations
regarding their younger brothers would support the defense that the
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children were motivated to make false allegations about Abram in
order to get him out of the house and to get away from his
discipline, and were in fact so motivated that they were willing to
"scorch the earth" to get him out. The uncharged allegations from
1999, if false, potentially show a pattern of false accusations
against the same defendant. As we stated in White:
Many jurors would regard a set of similar past
charges by [complainants], if shown to be
false, as very potent proof in [the
defendant's] favor. This "if," of course, is
the heart of the matter. . . . [T]he risk is
presented of a substantial excursion by both
sides into proof that the witness is or is not
telling the truth as to a prior
episode . . . . Yet cross-examination and
extrinsic proof are two different issues. The
ability to ask a witness about discrediting
prior events--always assuming a good faith
basis for the question--is worth a great deal.
Imagine if [the defendant] had been allowed to
question the [victims] about their prior
accusations, establish their similarity, and
inquire into supposed recantations. The jury,
hearing the questions and listening to the
replies, might have gained a great deal even
if neither side sought or was permitted to go
further.
399 F.3d at 24-25. Here, a pattern is not only suggestive of an
underlying motive, it is even more so than what we, in White,
considered suggestive because it shows the accusers' potential
animus against the defendant. See 399 F.3d at 24 ("If the prior
accusations [regarding other men] were false, it suggests a pattern
and a pattern suggests an underlying motive (although without
pinpointing its precise character).").
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Further, the evidence of the uncharged allegations
regarding the younger brothers is not cumulative of other evidence
relevant to the accusers' credibility. Although the evidence that
A.A. and C.A. recanted their 1999 allegations regarding the alleged
abuse they themselves endured supports the inference that the
children have a propensity to lie, it does not show the extent to
which they were willing to go in their attempt to get Abram out of
the house or escape his presence. The children's extraneous
efforts in making false allegations regarding their younger
brothers are relevant to show their animus toward the defendant.
Abram was entitled to a higher level of constitutional protection
because the evidence of the uncharged allegations was essential to
show A.A. and C.A.'s potential motive and animus toward the
defendant. See Redmond, 240 F.3d at 593 (noting that credibility
attacks based upon motive or bias are not subject to the
limitations of generally applicable evidentiary rules). Given that
the trial court failed to consider the argument that the evidence
was relevant to the children's bias or motive, I find that it
unreasonably applied federal law.
A.A.'s and C.A.'s 1999 uncharged allegations regarding
their younger brothers are especially relevant and should have been
allowed as a subject of controlled cross-examination. But the
trial court went even further, and barred any cross-examination on
this crucial subject. The facts here, like the facts in White,
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present an extreme case where the trial court should have extended
the protections of the Sixth Amendment regardless of the
petitioner's ability to meet New Hampshire's "demonstrably false"
standard.12
First, the circumstances surrounding the uncharged
allegations are similar in nature to A.A.'s and C.A.'s allegations
against Abram in 2002. See White, 399 F.3d at 24 (concluding that
the evidence was considerably more powerful than general
credibility evidence where the past accusations bore a marked
resemblance to the accusers' allegations against the defendant).
Both the 1999 and 2002 allegations were made on the heels of an
argument between A.A. and Abram, who was a strict disciplinarian,
and during periods of time coextensive with the periods during
which A.A. and C.A. claimed that Abrams engaged in their "long term
sexual abuse." Further, they involved minor children of the same
household, all of whom were under Abram's custody and control.
Second, there is a temporal proximity between the 1999
accusations and the 2002 accusations, during the latter of which
A.A. renewed the previously recanted accusations she and C.A. made
in 1999. If the children lied about the 1999 accusations, then it
makes it more likely that they would lie again just a few years
12
Although this Court has stated that a constitutional
challenge to this standard would be an "uphill struggle," we have
yet to address such a challenge. See Ellsworth v. Warden, 333 F.3d
1, 6 (1st Cir. 2003).
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later. Third, although the police knew about both the accusations
in 1999 and the renewal of the same in 2002, no charges were filed
against Abram regarding the 1999 allegations. The failure to
prosecute Abram for the 1999 allegations at a minimum raises the
possibility that the government did not find them credible in view
of the fact that the children recanted the allegations or that the
government strategically considered that cross-examination on that
point would damage A.A.'s and C.A.'s credibility.
Fourth, there was evidence that A.A. did not like being
in the Abram household because Abram and her mother argued often
(the 2002 charges resulted in A.A. and her brother being moved to
live with relatives). The fact that A.A. disliked being in the
household is relevant to her possible motive for lying repeatedly
about the accusations, as she could have either sought to remove
Abram from the household or, in the alternative, get herself sent
away. Finally, the striking similarities between the various
allegations in Abram's case and their importance to his defense
provide us with facts that are at least as extreme as those we had
in White.
The trial court's absolute ban, and the Supreme Court of
New Hampshire's affirmation of this ban, is an unreasonable
application of clearly established federal law. A restriction on
cross-examination, when appropriate,
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[c]alls for a balancing of interests depending
on circumstances of the case. Factors that
the Supreme Court has deemed relevant are [1]
the importance of the evidence to an effective
defense, [2] the scope of the ban involved and
[3] the strength vel non of state interests
weighing against admission of the evidence.
White, 399 F.3d at 24 (numbered brackets supplied). Here, the
court failed to consider the balancing required under White and
focused only on examining whether the facts in Abram's case were
identical to those in White. See State v. Abram, 903 A.2d at 1053-
54. In failing to balance the interests that White and established
federal law call for, the trial court unconstitutionally weighted
the scales in favor of the government's interest and unreasonably
applied established federal law.
I would reverse the district court's denial of relief.
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