___________ No. 95-3146

___________ 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 United States of America, * * [UNPUBLISHED] Defendant-Appellee. *

___________ Submitted: June 10, 1996 Filed: August 1, 1996

___________ Before BOWMAN, LAY, and LOKEN, Circuit Judges.

___________ PER CURIAM.

In 19 86, James F. Shaw was convicted of seven counts of carna l knowledge with his eleven-year-old foster daughter under 18 U.S.C. §§ 1153 , 2032 (19 82 & Supp. IV 1986). This court affirmed his conviction. Se e 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 la w that allowed evidence of prior sexual activity of an alleged victim as an alternative explanation for the v ictim's "injury." See Fed. R. Evid. 412(b)(2)(A) (1986). Th e trial court excluded the testimony. On direct a ppeal, this court rejected Shaw's argument that the testimony should have b een 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. Evi d. 412(b)(2)(A) (1986) provided for the admission 1 

### of "evidence of . . . past sex ual behavior with persons other than the accused, offered by the accused upon the issue of whether the accus ed was or was not, with respect to the alleged victim, th e source of semen or injury[.]" In 1994, Fed. R. Evid. 412 wa s amended to provide that such evidence may be admitted to show " a person o ther than the accused was the source of semen, injury o r ot her 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 tria l 2 

### transcript showing that Shaw's counsel did raise the constit utional issue at the trial and on appeal. He did not, however, raise the constitutional issue under Rule 412 in any pre-trial writtenmotion as required by Fed. R. Evid. 412(c) (1986). Nonetheless, th e trial judge rejected the evidence on its merits. Under the circum stances it is difficult to find that Shaw's counsel was deficient i n failing to raise the constitutional issue or that there exis ted any prejudice even if he did not timely raise it. Nonetheless, since this cou rt did not review this issue on direct appeal because i t found th at Shaw's counsel waived the issue, we feel Shaw and hi s counsel are entitled to a review on the merits of claim under the petition now filed. As we dis cuss, 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 hi s

1 argument for the admission of the evidence as constitutionally required an d as an alternative explanation for the girl's sex ual 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 asi de his conviction contending his trial counsel was cons titutionally deficient for failing to offer the testimony on the basis of h is 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 w e nonetheless review hi s claim that the evidence should have been admitted.

Shaw a rgues this testimony was constitutionally required to b e 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. Unite d States , 24 F.3d 1040, 1043 (8th Cir. 1994). Following the hearing, i n which several of the boys gave testimony, both the magistrate judge and th e distr ict court rejected Shaw's claim for relief. Shaw appeals; we no w affirm the dismissal of his § 2255 petition.
The testimony given at the § 2255 ev identiary hearing shows that, at best, the boys' testimony as to their alleged sexual acts with the gir l
wou ld 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 thei r alleged sexual acts with the girl. None of the boys had venereal disease at the time of the allege d acts. Thus, this tes timony could not have explained the condition of the girl 's hymen, her venereal disease, or the full extent of her sexua l 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 sexua l abuse by Shaw. Under these circumstances, we think the district cour t properlyfound that this evidence was not relevant to the case, and thus Shaw had no constitutional right to introduce the boys' testimony.

Furthermo re, whatever relevance the boys' testimony may have had is outwe ighed by the legitimate governmental interests in avoiding th e confusion, prejudice, and harassment likely to r esult 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 , 47 5 U.S. 673, 679 (1986); United States v. Bear Stops , 997 F.2d 451, 454-5 8 (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 Sha w asked himto fabricate allegations about the girl. In Bear Stops , thi s court found that "uncontroverted" evidence about an incident of sexua l abuse of the victim, contemporaneous with the alleged abuse in that case,
was constitutionally required to be admitted because it was highly relevan t as an alternative exp lanation 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 an d controverted, and thus we conclude the potential for confusion, prejudice, and ha rassment at the trial substantially outweighs Shaw's rights t o present the evidence.
Finally, the boys' testimony provides no basis for believing th at the outcome of the case would have been different if such testimony had been presented to the jury. The magistrate judge fou nd 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 als o denied engaging in any sexual acts with the girl and stated that he sa w Shaw ha ving intercourse with the girl. Under these circumstances, w e cannot find a reasonable probability that the result of the proceedin g would have been different if the boys' testimony had been admitted, nor is
our c onfidence in the outcome of the trial undermined by the proffere d testimony.
For the foregoing reasons, the judgment is AFFIRMED.

A true copy.

Attest:

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