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

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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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