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Scott Abram v. Richard Gerry

February 24, 2012



The opinion of the court was delivered by: Howard, Circuit Judge.

Before Torruella, Lipez and Howard, Circuit Judges.

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.


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).

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.*fn1 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.*fn2 When questioned by investigators, however, the two younger brothers denied that the alleged abuse occurred.*fn3

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 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."*fn4 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 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.*fn5 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.

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.*fn6

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 application of federal law under Supreme Court precedent, as interpreted by White. This appeal followed.


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.

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 ...

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