___________

No. 95-3146

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James F. Shaw, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

United States of America, *

* [UNPUBLISHED]

Defendant-Appellee. *

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 Submitted: June 10, 1996

 Filed: August 1, 1996

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Before BOWMAN, LAY, and LOKEN, Circuit Judges.

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PER CURIAM.

In 1986, James F. Shaw was convicted of seven counts of carnal

knowledge with his eleven-year-old foster daughter under 18 U.S.C. §§ 1153,

2032 (1982 & Supp. IV 1986). This court affirmed his conviction. See

United States v. Shaw, 824 F.2d 601 (8th Cir. 1987), cert. denied, 484 U.S.

1068 (1988). Shaw sought to introduce testimony from several boys as to

their prior sexual activities with the girl. This testimony was offered

under an exception to the federal rape-shield law that allowed evidence of

prior sexual activity of an alleged victim as an alternative explanation

for the victim's "injury." See Fed. R. Evid. 412(b)(2)(A) (1986). The

trial court excluded the testimony. On direct appeal, this court rejected

Shaw's argument that the testimony should have been admitted, finding that

the condition of the girl's hymen--described as penetrated, stretched, or

widened--did not constitute an "injury" within the meaning of Fed. R. Evid.
 Fed. R. Evid. 412(b)(2)(A) (1986) provided for the admission 1

of "evidence of . . . past sexual behavior with persons other than

the accused, offered by the accused upon the issue of whether the

accused was or was not, with respect to the alleged victim, the

source of semen or injury[.]" In 1994, Fed. R. Evid. 412 was

amended to provide that such evidence may be admitted to show "a

person other than the accused was the source of semen, injury or

other physical evidence[.]" Fed. R. Evid. 412(b)(1)(A) (1995)

(emphasis added). See also United States v. Begay, 937 F.2d 515,

523 n.10 (10th Cir. 1991).

 The magistrate judge quotes from the original trial

2

transcript showing that Shaw's counsel did raise the constitutional

issue at the trial and on appeal. He did not, however, raise the

constitutional issue under Rule 412 in any pre-trial written motion

as required by Fed. R. Evid. 412(c) (1986). Nonetheless, the trial

judge rejected the evidence on its merits. Under the circumstances

it is difficult to find that Shaw's counsel was deficient in

failing to raise the constitutional issue or that there existed any

prejudice even if he did not timely raise it. Nonetheless, since

this court did not review this issue on direct appeal because it

found that Shaw's counsel waived the issue, we feel Shaw and his

counsel are entitled to a review on the merits of claim under the

petition now filed. As we discuss, we conclude that this evidence

was highly speculative and not relevant. Under the circumstances,

the trial court's rejection of it was not in error.

-2-

412. Shaw, 824 F.2d at 605. This court also found Shaw waived his

1

argument for the admission of the evidence as constitutionally required and

as an alternative explanation for the girl's sexual knowledge and venereal

disease. Id. at 603 n.2, 606 n.6.2

Shaw has now filed a 28 U.S.C. § 2255 motion seeking to set aside his

conviction contending his trial counsel was constitutionally deficient for

failing to offer the testimony on the basis of his constitutional right to

defend himself. As we have discussed in note 2, supra, we find Shaw did

raise the claim during trial and the trial court ruled on it, but we

nonetheless review his claim that the evidence should have been admitted.

Shaw argues this testimony was constitutionally required to be

admitted as an alternative explanation for the condition of the girl's

hymen, the girl's sexual knowledge, and the girl's venereal disease. The

district court initially rejected Shaw's claim for
-3-

relief, but this court remanded for an evidentiary hearing. Shaw v. United

States, 24 F.3d 1040, 1043 (8th Cir. 1994). Following the hearing, in

which several of the boys gave testimony, both the magistrate judge and the

district court rejected Shaw's claim for relief. Shaw appeals; we now

affirm the dismissal of his § 2255 petition.

The testimony given at the § 2255 evidentiary hearing shows that, at

best, the boys' testimony as to their alleged sexual acts with the girl

would have been minimally relevant and highly speculative at the trial.

Almost all of the alleged sexual acts concerning these boys occurred two

to three years before the charged conduct against Shaw. None of the boys

testified to full or repeated penetration of the girl's vagina. None of

the boys testified as to ejaculating during their alleged sexual acts with

the girl. None of the boys had venereal disease at the time of the alleged

acts. Thus, this testimony could not have explained the condition of the

girl's hymen, her venereal disease, or the full extent of her sexual

knowledge. Nor would the existence of sexual activities with these boys

provide any basis, under the facts of this case, for concluding that the

girl was confused or fabricated her testimony about the ongoing sexual

abuse by Shaw. Under these circumstances, we think the district court

properly found that this evidence was not relevant to the case, and thus

Shaw had no constitutional right to introduce the boys' testimony.

Furthermore, whatever relevance the boys' testimony may have had is

outweighed by the legitimate governmental interests in avoiding the

confusion, prejudice, and harassment likely to result from introduction of

the boys' testimony. See Michigan v. Lucas, 500 U.S. 145, 149 (1991); see

also Rock v. Arkansas, 483 U.S. 44, 61 (1987); Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986); United States v. Bear Stops, 997 F.2d 451, 454-58

(8th Cir. 1993). The girl strongly disputes the boys' testimony about the

alleged sexual acts, and the government has attacked the boys' credibility.
-4-

One of the boys who testified at the § 2255 hearing testified that Shaw

asked him to fabricate allegations about the girl. In Bear Stops, this

court found that "uncontroverted" evidence about an incident of sexual

abuse of the victim, contemporaneous with the alleged abuse in that case,

was constitutionally required to be admitted because it was highly relevant

as an alternative explanation for the victim's "behavioral manifestations

of a sexually abused child" and for the victim's bloody underwear. Id. at

457. By contrast, the evidence in this case is minimally relevant and

controverted, and thus we conclude the potential for confusion, prejudice,

and harassment at the trial substantially outweighs Shaw's rights to

present the evidence.

Finally, the boys' testimony provides no basis for believing that the

outcome of the case would have been different if such testimony had been

presented to the jury. The magistrate judge found the boys' testimony was

not credible. As we have discussed, the boys' testimony, even if believed,

was of little probative value on the key issues in the case. Furthermore,

the boy who testified that Shaw asked him to fabricate allegations also

denied engaging in any sexual acts with the girl and stated that he saw

Shaw having intercourse with the girl. Under these circumstances, we

cannot find a reasonable probability that the result of the proceeding

would have been different if the boys' testimony had been admitted, nor is

our confidence in the outcome of the trial undermined by the proffered

testimony. 

For the foregoing reasons, the judgment is AFFIRMED.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.