No. 11-1504 - State v. Jack J. 

FILED 

April 11, 2013 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Davis, J., dissenting: 

The majority affirmed the defendant’s convictions for sexual offenses against 

his girlfriend’s adolescent daughter. In doing so, the majority’s opinion affirmed the trial 

court’s ruling prohibiting the defendant from presenting evidence that the alleged victim 

previously had falsely accused at least twelve other people of sexual misconduct toward her. 

Because I believe the defendant had a constitutional right, under the facts of this case, to 

inform the jury that the alleged victim previouslyhad made numerous, unfounded allegations 

of sexual misconduct by other people, I dissent.1 

The Defendant’s Constitutional Right to Confront His Accuser Was Violated 

“Probably no one, certainly no one experienced in the trial of lawsuits, would 

deny the value of cross-examination in exposing falsehood and bringing out the truth in the 

trial of a criminal case.” Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 

L. Ed. 2d 923 (1965). Indeed, “[t]he right to confront and to cross-examine witnesses is 

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I wish to be perfectly clear. This case was not about informing the jury that the 

alleged victim actually had engaged in sexual relations with others. The sole issue in this 

case was informing the jury that the alleged victim previously had made numerous, 

unfounded sexual misconduct allegations against others. 

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primarily a functional right that promotes reliability in criminal trials.” Lee v. Illinois, 476 

U.S. 530, 540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514 (1986). For this reason, the United 

States Supreme Court scrupulously has guarded against “restrictions imposed by law or by 

the trial court on the scope of cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 18, 

106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985). In fact, the Confrontation Clause of the Sixth 

Amendment of the United States Constitution guarantees a criminal defendant the right to 

be confronted with the witnesses against him or her. Moreover, the Supreme Court has held 

that the rights under the Confrontation Clause mean more than merely being allowed to 

confront a witness physically. In Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 

998, 94 L. Ed. 2d 40 (1987), the Court held that “[t]he Confrontation Clause provides two 

types of protections for a criminal defendant: the right physically to face those who testify 

against him, and the right to conduct cross-examination.” See also Douglas v. Alabama, 380 

U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934 (1965) (“[A] primary interest secured 

by [the Confrontation Clause] is the right of cross-examination.”). The critical importance 

of cross-examination has been set out as follows: 

Cross-examination is the principal means by which the 

believability of a witness and the truth of his testimony are 

tested. Subject always to the broad discretion of a trial judge to 

preclude repetitive and unduly harassing interrogation, the 

cross-examiner is not only permitted to delve into the witness’ 

story to test the witness’ perceptions and memory, but the 

cross-examiner has traditionally been allowed to impeach, i.e., 

discredit, the witness. . . . A more particular attack on the 

witness’ credibility is effected by means of cross-examination 

directed toward revealing possible biases, prejudices, or ulterior 

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motives of the witness as they may relate directly to issues or 

personalities in the case at hand. The partiality of a witness is 

subject to exploration at trial, and is always relevant as 

discrediting the witness and affecting the weight of his 

testimony. 

Davis v. Alaska, 415 U.S. 308, 315-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974) 

(internal quotations and citations omitted). See also Maryland v. Craig, 497 U.S. 836, 845, 

110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990) (“The central concern of the Confrontation 

Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting 

it to rigorous testing in the context of an adversary proceeding before the trier of fact.”); 

Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923 (1965) (“There 

are few subjects, perhaps, upon which this Court and other courts have been more nearly 

unanimous than in their expressions of belief that the right of confrontation and 

cross-examination is an essential and fundamental requirement for the kind of fair trial which 

is this country’s constitutional goal.”). 

The decision in Davis illustrates the problem of denying a defendant the right 

to cross-examine a key witness with relevant evidence that attacks the witness’ credibility. 

The defendant in Davis was convicted of burglary and grand larceny. During the trial, the 

court refused to allow the defendant to cross-examine a key prosecution witness about the 

witness’ probation status following an adjudication of juvenile delinquency. The trial court 

found that, under the state’s laws, such evidence was not admissible. The Supreme Court 

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reversed the conviction upon finding the defendant’s rights under the Confrontation Clause 

were violated: 

In the instant case, defense counsel sought to show the 

existence of possible bias and prejudice of Green, causing him 

to make a faulty initial identification of petitioner, which in turn 

could have affected his later in-court identification of petitioner. 

We cannot speculate as to whether the jury, as sole judge 

of the credibility of a witness, would have accepted this line of 

reasoning had counsel been permitted to fully present it. But we 

do conclude that the jurors were entitled to have the benefit of 

the defense theory before them so that they could make an 

informed judgment as to the weight to place on Green’s 

testimony which provided a crucial link in the proof . . . of 

petitioner’s act. The accuracy and truthfulness of Green’s 

testimony were key elements in the State’s case against 

petitioner. . . . 

. . . . 

[P]etitioner sought to introduce evidence of Green’s probation 

for the purpose of suggesting that Green was biased and, 

therefore, that his testimony was either not to be believed in his 

identification of petitioner or at least very carefully considered 

in that light. Serious damage to the strength of the State’s case 

would have been a real possibility had petitioner been allowed 

to pursue this line of inquiry. In this setting we conclude that 

the right of confrontation is paramount to the State’s policy of 

protecting a juvenile offender. Whatever temporary 

embarrassment might result to Green or his family by disclosure 

of his juvenile record . . . is outweighed by petitioner’s right to 

probe into the influence of possible bias in the testimony of a 

crucial identification witness. 

Davis, 415 U.S. at 317-19, 94 S. Ct. at 1110-12, 39 L. Ed. 2d 347. See Olden v. Kentucky, 

488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (per curiam) (holding that trial 

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court’s refusal to allow defendant to impeach victim’s testimony by cross-examining victim 

about possible motive to lie deprived defendant of his right to confrontation); Delaware v. 

Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986) (precluding 

defendant from questioning witness about State’s dismissal of pending public drunkenness 

charge against him and concluding that, “[b]y thus cutting off all questioning about an event 

. . . that a jury might reasonably have found furnished the witness a motive for favoring the 

prosecution in his testimony,” the trial court’s ruling violated the defendant’s rights under 

the Confrontation Clause). 

The decision in Davis illustrates the Supreme Court’s general guidelines for 

enforcing the Confrontation Clause in the context of limiting cross-examination of a 

testifying witness. Federal courts of appeal have addressed the more specific issue of 

denying a defendant the right to cross-examine a sexual assault victim regarding her prior 

unfounded allegations of sexual misconduct by others. In Redmond v. Kingston, 240 F.3d 

590 (7th Cir. 2001), the defendant was convicted by a Wisconsin jury of sexually assaulting 

a fifteen-year-old victim. During the trial, the defendant was denied the right to confront the 

victim concerning a prior unfounded claim that she had been forcibly raped by another 

person. In a habeas corpus appeal to the Seventh Circuit Court of Appeals, the defendant 

argued that the trial court’s restrictions on his cross-examination of the victim violated his 

rights under the Confrontation Clause. The Seventh Circuit agreed: 

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The evidence . . . was not cumulative, or otherwise 

peripheral, considering that testimony by [the victim] was 

virtually the only evidence of Redmond’s guilt that the 

prosecution had. . . . The only evidence that was relevant to her 

credibility in Redmond’s case . . . was that within the preceding 

year she had made up a story about being forcibly raped. 

Whether or not she had had sex with the alleged rapist was 

irrelevant, since Redmond was not prepared to try to prove that 

she had not. For unexplained reasons the Wisconsin court of 

appeals thought that if Redmond’s lawyer had been permitted to 

ask [the victim] whether she had ever made a false charge of 

forcible sexual assault, the door would have been opened to an 

inquiry into whether she had had sex on that occasion at all. We 

cannot think of any reason why. . . 

And thus the court’s ruling, though ostensibly based on 

the rape-shield statute, derives no support from that statute. The 

statute protects complaining witnesses in rape cases (including 

statutory-rape cases) from being questioned about their sexual 

conduct, but a false charge of rape is not sexual conduct. . . . . 

The false-charge “exception” to the rape-shield statute is not 

really an exception, but rather a reminder of the limited meaning 

of “sexual conduct” as defined in the statute. The only basis for 

the court’s ruling was the general principle of the law of 

evidence . . . that relevant evidence may be excluded if its 

probative value is substantially outweighed by its prejudicial 

(confusing, or cumulative) effect. When that unexceptionable 

rule is applied as it was here to exclude highly probative . . . 

evidence tendered by a criminal defendant that is vital to the 

central issue in the case ([the victim’s] credibility), the 

defendant’s constitutional right of confrontation has been 

infringed. . . . . 

Redmond, 240 F.3d at 592 (internal citations omitted). See also Sussman v. Jenkins, 636 F.3d 

329, 357 (7th Cir. 2011) (applying Redmond and holding: “The jury reasonably could have 

concluded that [the victim] was prone to use allegations of sexual abuse against father figures 

as a means either of gaining their attention or as a means of punishing them for abandoning 

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him.”); Kittelson v. Dretke, 426 F.3d 306, 322-23 (5th Cir. 2005) (following Redmond and 

holding: “In a case that turned entirely on the credibility of the complaining witness, the state 

courts’ restriction on Kittelson’s ability to challenge that credibility violated his 

clearly-established confrontation and due process rights and cannot be considered 

harmless.”). 

In White v. Coplan, 399 F.3d 18 (1st Cir. 2005), a New Hampshire jury 

convicted the defendant of three counts of sexual assault against two young girls. At trial, 

the defendant was forbidden to offer evidence that both girls had previously made such 

accusations against other persons. In his habeas corpus appeal to the First Circuit Court of 

Appeals, the defendant argued that this restriction violated his Confrontation Clause rights. 

The First Circuit agreed: 

In this case, White’s evidence was not merely “general” 

credibility evidence. . . . 

The evidence in this case was considerably more 

powerful. The past accusations were about sexual assaults, not 

lies on other subjects; and while sexual assaults may have some 

generic similarity, here the past accusations by the girls bore a 

close resemblance to the girls’ present testimony–in one case 

markedly so. In this regard the evidence of prior allegations is 

unusual. 

If the prior accusations were false, it suggests a pattern 

and a pattern suggests an underlying motive (although without 

pinpointing its precise character). . . . Many jurors would regard 

a set of similar past charges by the girls, if shown to be false, as 

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very potent proof in White’s favor. 

This “if,” of course, is the heart of the matter. If the 

witness were [sic] prepared to admit on the stand that a prior 

accusation of similar nature was false, it is hard to imagine good 

reason for excluding the evidence. Prior admitted lies of the 

same kind in similar circumstances could powerfully discredit 

the witness. . . . 

. . . . 

White was accused of serious crimes–witness his 

sentence–and virtually everything turned on whether the two 

girls were to be believed. White had almost no way to defend 

himself except by impeachment. . . . [C]ross-examination to 

show prior similar accusations by the girls . . . could easily have 

changed the outcome. 

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. . . . In our case the nature of the motive may be unknown; 

but if the prior accusations are similar enough to the present 

ones and shown to be false, a motive can be inferred and from 

it a plausible doubt or disbelief as to the witness’ present 

testimony. 

White, 399 F.3d at 24-26 (internal citations omitted). But see Jordan v. Warden, Lebanon 

Corr. Inst., 675 F.3d 586 (6th Cir. 2012) (finding no constitutional violation); Piscopo v. 

Michigan, 479 Fed. App’x. 698 (6th Cir. 2012) (same); Abram v. Gerry, 672 F.3d 45 (1st Cir. 

2012) (same); United States v. Frederick, 683 F.3d 913 (8th Cir. 2012) (same); United States 

v. Tail, 459 F.3d 854 (8th Cir. 2006) (same); Boggs v. Collins, 226 F.3d 728, 740 (6th Cir. 

2000). 

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In the instant case, the majority opinion found that the defendant failed to meet 

the standard of proof required to introduce evidence that the alleged victim previously had 

falsely accused other persons of sexual misconduct against her. The standard of proof 

required to introduce such evidence was set out in State v. Quinn, 200 W. Va. 432, 490 

S.E.2d 34 (1997). Under Quinn, the defendant had to establish by “strong and substantial 

proof . . . the actual falsity of an alleged victim’s other statements[.]” Syl. pt. 2, in part, id. 

(emphasis added). I believe the defendant met his burden of proof under Quinn. I also 

believe that the majority opinion superimposed a higher burden than what is required by 

Quinn, and this heightened standard violated the defendant’s rights under the Confrontation 

Clause.2 

Under the decision in Quinn, 

“[a] defendant who wishes to cross-examine an alleged 

victim of a sexual offense about or otherwise introduce evidence 

2

In determining whether restrictions on cross-examination violate the Confrontation 

Clause, courts look at: (1) whether the excluded evidence was relevant; (2) whether there 

were other legitimate interests outweighing the defendant’s interest in presenting the 

evidence; and (3) whether the exclusion of evidence left the jury with sufficient information 

to assess the credibility of the witness. United States v. Larson, 495 F. 3d 1094, 1103 (9th 

Cir. 2007). See United States v. Roussel, 705 F.3d 184, 194 (5th Cir. 2013) (“The Sixth 

Amendment’s Confrontation Clause is violated if the defendant [can] show that a reasonable 

jury might have had a significantly different impression of the witness’s credibility if defense 

counsel had been allowed to pursue the questioning.” (internal quotations and citation 

omitted)); Ortiz v. Yates, 704 F.3d 1026, 1037 (9th Cir. 2012) (“The whole point of the 

effective, permissible cross-examination protected bythe Confrontation Clause is to diminish 

the witness’ credibility with the jury and thereby render a conviction less likely.”). 

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about other statements that the alleged victim has made about 

being the victim of sexual misconduct must initially present 

evidence regarding the statements to the court out of the 

presence of the jury and with fair notice to the prosecution, 

which presentation may in the court’s discretion be limited to 

proffer, affidavit, or other method[.] 

Syl. pt 3, in part, Quinn, 200 W. Va. 432, 490 S.E.2d 34. In the instant case the defendant’s 

brief indicated he submitted the following proffer of the falsity of the victim’s prior 

allegations against others: 

1. The child, . . . , falsely reported that she was subjected 

to inappropriate sexual contact by [C.M.], III and [C.M.], IV. 

The child has admitted to a mental health professional that the 

reports were false claiming that she made the reports because 

she was confused by her mother. [D.H.H.R. Assessment dated 

3/23/03 at p. 2]. An investigation was conducted by the Ohio 

County Sheriffs office and by D.H.H.R. and found these reports 

to be unsubstantiated. 

2. The child, . . . , falsely reported that she was subjected 

to inappropriate sexual contact by both [S.K.] and her husband, 

[P.K.], or that she dreamed of inappropriate sexual contact with 

[S.K.] and her husband, [P.K.]. The child has admitted to a 

mental health professional that the reports were false. An 

investigation by D.H.H.R. found the reports to be 

unsubstantiated. There are numerous reports by [the child’s 

mother] of dream sexual assaults including early reports by [the 

victim] that the sexual assaults by Jack [J.] were dreams. 

Moreover, the child has reported to [her mother] that she 

dreamed that she was sexually assaulted by Lt. [C.] during his 

interview of the child. [Taped interview of Jack [J.] by Lt. [C.], 

interviews of [the mother], [M. M], and [M. M.]]. 

A. The Child and Adolescent Needs and 

Strengths and Comprehensive Multisystem 

Assessment dated 2/28/07 contains the following 

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language: 

“This placement was disrupted when [the 

alleged victim] began to fantasize that her foster 

parents were going to have sexual intercourse in 

front of her and then involve her in the act. [The 

alleged victim] also began to have sexual dreams 

where her foster mother was having sex with 

numerous men.” (P.3) 

B. “Clear evidence of antisocial behavior 

including but not limited to lying, stealing, 

manipulating others, sexual aggression, violence 

towards people, property or animals.” [P. 11]. 

C. “[The alleged victim] has fantasized that 

her former foster parents were going to sexually 

abuse her. She most recently was having dreams 

that her foster mother was having sex with other 

men (like she witnessed her mother doing) and 

was going to also include [the alleged victim] in 

the act.” (P. 18). 

D. “Since [the alleged victim] has been in placement at 

Pomegrante, she disclosed that while living in the home of her 

biological mother, she sexually assaulted an infant, male cousin 

by inserting a coat hanger in his penis. This happened in her 

bedroom. When she couldn’t get the hanger out, the baby began 

crying and she yanked it out, put his diaper back on, and went 

downstairs.” (p.18). 

3. The Section II, Designated Individual Case Reviewer report dated 

8/7/2007 contains the following language: 

A. “[The alleged victim] has fantasized that her former 

foster parents were going to sexually abuse her. She most 

recently was having dreams that her foster mother was having 

sex with other men (like she witnessed her mother doing) and 

was going to also include [the alleged victim] in the act.” (p. 

13). 

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B. The child reports sexually oriented 

nightmares at the [K.] residence on pp. 18-19. 

C. “According to information obtained 

through this reviewer's interview with [S.K.], [the 

alleged victim] had been having some bizarre 

dreams, thoughts, and behaviors about two weeks 

prior to her removal from the [K.] home. [The 

alleged victim’s] bizarre behaviors allegedly 

started when Mr. and Mrs. [K.] were sitting next 

to each other on the couch in the living room with 

[the alleged victim] also being in the room with 

them. [The alleged victim] reportedly began to get 

very nervous and anxious that [Mr. and Mrs. K.] 

were going to have sex and make her 

watch/participate. Around the same time, [the 

alleged victim] began to report having dreams that 

involved [S.K.] having sex with numerous men. 

[The alleged victim] went to school one day and 

told school personnel that she had seen Mr. [K.] 

in his underwear. The school called [S.K.] regard 

to this. Sally adamantly denied that this could 

have happened as her husband is a long-distance 

truck driver and is only home on weekends. She 

was positive [the alleged victim] had never seen 

him dressed inappropriately.” (p. 21). 

4. The child, has reported that her cousin, . . . , inserted 

a hair brush into her vagina. The report is memorialized in the 

medical records of Dr. Romano for 7/18/01 with a report of “no 

obvious evidence of genital trauma.” Further details of the 

report provided by [relatives of the alleged victim]; report 

mentioned in D.H.H.R. Assessment dated 3/23/03 at p. 2. 

5. The child, . . . , has falsely reported that she was 

sexually abused by [John G.]. [The alleged victim] has admitted 

that the report was false. [D.H.H.R. report of September 

14,2009 at pages 1 & 5]. An initial recorded interview at 

Harmony House resulted in the alleged victim stating that the 

report was false. In a later unrecorded interview by Linda 

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Reeves, the child reportedly claimed that the report was true. 

[J.G.] and an eyewitness both deny that the report is true. In an 

agreed upon in camera interview by the Court, [the alleged 

victim] stated that the report was true while the eyewitness 

denied the truth of the report. 

6. The child, . . . , has falsely reported that she was 

sexually abused by various men on at least three occasions. 

[D.H.H.R. report of September 14, 2009 at pages 3 & 5]. 

7. The child, . . . , has falsely reported that she was 

sexually abused by [P.K.], a grandfather and a principal. 

[D.H.H.R. report of September 14, 2009 at page 4). 

8. The child has reported that she saw her former foster 

sibling . . . naked. The child later denied that she saw [her 

former foster sibiling] naked or that she made the report. 

[February 9, 2009 report of Solutions Outpatient Services]. 

9. The alleged victim has reported that she saw [D.B.] 

naked. [S.K.’s notes on page 1]. The alleged victim has also 

reported that [D.B.] had intercourse with her. [S.K.]’s notes 

for Nov. 22, 2006; Pomegrante Report p. 9/33]. The report that 

[W.] and [D.B.] had sex with [the alleged victim] touched [sic] 

upon in the interview by Linda Reeves. The alleged victim 

denied that [D.B.] did anything to her except spanking her in 

that interview. [Hogan interview at pp. 10 & 12.]. 

10. The alleged victim has reported that she has had sex 

with her cousin . . . and was caught in the act. [Pomegrante 

Report p. 27/33]. 

(Emphasis added). 

The above evidence submitted to the trial court shows that the victim alleged 

sexual misconduct against: (1) C.M., III, and C.M., IV, which was found to be 

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unsubstantiated by a local sheriff and DHHR; (2) S. K. and P. K., which was found to be 

unsubstantiated by DHHR; (3) a cousin, which was found to be medically unsubstantiated; 

(4) social worker J.G., which was later retracted, then reaffirmed, then retracted, then 

reaffirmed; (5) three unnamed men; (6) a foster sibling W.; (7) D.B.; and (8) a second cousin 

In total, the defendant presented evidence that the alleged victim has accused at least twelve 

different people of engaging in sexual misconduct with her. 

The majority opinion held that the defendant failed to prove that the twelve people did 

not engage in sexual misconduct with the alleged victim. Such a finding is disturbing. The 

defendant in this case was able to submit credible evidence, that was documented in DHHR 

reports, that law enforcement and DHHR had investigated many of the allegations by the 

alleged victim and found them unsubstantiated. 

To the extent that the defendant’s proffer was insufficient, the only way that 

he could satisfy the majority’s interpretation of the “strong and substantial proof” 

requirement would be to provide the trial court with judgments of acquittal of the other 

persons accused of sexual misconduct by the alleged victim. This heightened standard is 

unconscionable and violated the defendant’s constitutional right of confrontation.3 I do not 

3

The unconscionability of this heightened standard is found in the fact that the 

prosecutor did not bring charges against any of the other persons falsely accused by the 

alleged victim–thus it was impossible for the defendant to submit judgments of acquittal. 

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make this assessment lightly. The Fourth Circuit reviewed this Court’s opinion in Quinn in 

a habeas corpus proceeding. Although the Fourth Circuit affirmed Quinn, it did so by 

expressly noting that it did “not address the broader issue of whether West Virginia’s 

standard of strong and substantial proof of falsity is objectively reasonable in light of relevant 

Supreme Court precedent.” Quinn v. Haynes, 234 F.3d 837, 847 (4th Cir. 2000). I submit 

that the standard of “strong and substantial proof,” as interpreted in this case by the majority 

opinion, is not objectively reasonable under the decisions of the United States Supreme 

Court. The defendant in this case sought “to expose to the jury the facts from which [the] 

jurors . . . could appropriately draw inferences relating to the reliability of the [victim].” 

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986) 

(internal quotations and citation omitted). See also Berger v. California, 393 U.S. 314, 315, 

89 S. Ct. 540, 541, 21 L. Ed. 2d 508 (1969) (“[O]ne of the important objects of the right of 

confrontation was to guarantee that the fact finder had an adequate opportunity to assess the 

credibility of witnesses.”). However, because the trial court prohibited cross-examination 

of the alleged victim concerning prior unfounded allegations of sexual misconduct by others, 

“[t]he jury was essentially misled, by the empty gesture of cross-examination, to believe that 

the defense attorney had been permitted to use all the tools at his disposal to expose 

weaknesses in [the alleged victim’s] testimony.” Van Arsdall, 475 U.S. at 688, 106 S. Ct. 

at 1440, 89 L. Ed. 2d 674. 

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In the final analysis, I agree with the dissenting opinion in Abram v. Gerry, 672 

F.3d 45(1st Cir. 2012): 

The specter of an adult, particularly one in a position of trust . . ., 

sexually abusing [a] minor [child] 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. 

Abram, 672 F.3d at 53 (Torruella, J., dissenting). In view of the foregoing, I respectfully 

dissent. 

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