UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4181

JAMES A. BERKLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-17)

Argued: April 11, 1997

Decided: October 22, 1997

Before MURNAGHAN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Phillips wrote the
opinion, in which Judge Murnaghan and Senior Judge Butzner joined.

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COUNSEL

ARGUED: Tony E. Rollman, Asheville, North Carolina, for Appel-
lant. Brian Lee Whisler, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United
States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PHILLIPS, Senior Circuit Judge:

James Berkley was convicted following a jury trial of one count of
Transporting a Female Under Fifteen Years of Age in Interstate Com-
merce to Engage in Sexual Intercourse, in violation of 18 U.S.C.
§ 2423. He appeals, challenging an evidentiary ruling by the district
court and seeking a new trial. We affirm.

I

At the time in issue, James Berkley was a Greyhound bus driver
in North Carolina. The victim, "Angela," was staying at a group home
for troubled children in Asheville. She was fourteen. She often rode
the bus on the route driven by Berkley when she went home to Mor-
ganton on the weekends to visit her mother. Employees of the chil-
dren's home and Angela's mother had both spoken to Berkley and
asked him to look out for Angela, a frightened and troubled young
person, while she traveled between Asheville and Morganton.

One weekend in June 1994, Berkley invited Angela to go to Knox-
ville, Tennessee with him for the weekend instead of returning to the
group home. Angela agreed and Berkley took her to a motel in Knox-
ville where they had sexual relations and spent the night. When
Angela returned to the children's home the next day, she first lied
about where she had been during the weekend. Soon, however, she
told her caretakers and social workers about the events with Berkley
and formal criminal charges were filed.1
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1 The critical facts respecting Berkley's culpability were disputed at
trial and found against him by the jury. We have recited them here on
the basis of the evidence considered in the light most favorable to the
prosecution.

                    2
Before trial, Berkley learned that records existed suggesting that
Angela had, in the past, made an allegation of sexual assault against
other men. Those records were believed to be in the possession of the
Department of Social Services and the group homes in which Angela
had lived. Berkley subpoenaed those documents, which were turned
over to the district court for in camera review and were not given to
the defendant or to the government. At trial, Berkley sought to cross-
examine Angela about the earlier accusation and sought to obtain cop-
ies of the relevant documents for use during cross-examination.
Although he had not examined the documents, he had some knowl-
edge of their contents. Berkley argued that a suspected earlier allega-
tion of rape made by Angela had been false and therefore was
relevant to show that Angela was also making an untrue accusation
against Berkley.

Based upon an in camera review of the relevant documents, the dis-
trict court prohibited Berkley from cross-examining Angela about the
prior charge on the ground that the evidence was prohibited by the
rape shield law of Federal Rule of Evidence 412. The district court
sealed those documents for purposes of appellate review and neither
Berkley nor the government ever examined them.

This appeal followed Berkley's conviction. He challenges only the
district court's refusal to permit his cross-examination of Angela
respecting any prior accusations of sexual assault by others.

II

Federal Rule of Evidence 412 limits the admissibility of evidence
in a criminal trial of a rape victim's past sexual behavior to three situ-
ations: when the evidence is constitutionally required, when it is rele-
vant regarding the source of semen or injury found on the victim, and
when it deals with prior sexual behavior between the victim and the
accused and is relevant to the issue of consent. 2
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2 Rule 412 provides, in relevant part:

          (a) Evidence generally inadmissible.-- The following evidence
          is not admissible in any civil or criminal proceeding involving
          alleged sexual misconduct except as provided in subdivisions (b)
          and (c):

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As a preliminary matter, we note that the evidence Berkley sought
to introduce by cross-examination was not evidence of prior sexual
behavior per se, which is plainly governed by Rule 412, but is instead
evidence of a prior accusation of sexual assault. The Government says
this is of no consequence, citing decisions from several federal courts
which have held that Rule 412 applies as well to evidence of prior
accusations of sexual assault. See, e.g., United States v. Rouse, 111
F.3d 561, 569 n.7 (8th Cir. 1997); United States v. Provost, 875 F.2d
172, 177-78 (8th Cir. 1989); United States v. Cardinal, 782 F.2d 34,
36 (6th Cir. 1986); see also United States v. Stamper, 766 F. Supp.
1396, 1399 (W.D.N.C. 1991) (applying Rule 412 to past accusations
of rape in federal court, but noting that many state courts have
decided not to address prior accusations under state rape shield laws),
aff'd, 959 F.2d 231 (4th Cir. 1992). But see United States v. Bartlett,
856 F.2d 1071, 1088 (8th Cir. 1988) (expressing doubt about whether
prior rape charges are best governed by Rule 412 or Rule 608(b) but
finding the analysis to be the same under both rules).
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         (1) Evidence offered to prove that any alleged victim
         engaged in other sexual behavior.

         (2) Evidence offered to prove any alleged victim's sexual
         predisposition.

         (b) Exceptions.--

         (1) In a criminal case, the following evidence is admissible,
         if otherwise admissible under these rules:

          (A) evidence of specific instances of sexual behavior by
         the alleged victim offered to prove that a person other than
         the accused was the source of semen, injury or other phys-
         ical evidence;

          (B) evidence of specific instances of sexual behavior by
         the alleged victim with respect to the person accused of
         sexual misconduct offered by the accused to prove con-
         sent or by the prosecution; and

          (C) evidence the exclusion of which would violate the
         constitutional rights of the defendant.

Fed.R.Evid. 412.

                   4
Despite their near uniformity in application of Rule 412 to prior
accusations of sexual assault, these cases are not dispositive because
they either pre-dated or failed to take into account 1994 substantive
amendments to Rule 412 that could affect the Rule's application.3 The
Advisory Committee Notes accompanying the Amendments assert
that under the law as so amended "[e]vidence offered to prove alleg-
edly false prior claims by the victim is not barred by Rule 412." As
at least one circuit has pointed out, these Committee Notes have "in-
terpretive weight" and "rather strongly suggest" that prior false accu-
sations of sexual assault are not governed by Rule 412. United States
v. Cournoyer, 118 F.3d 1279, 1282 (8th Cir. 1997).

We need not decide whether the 1994 Amendments always place
prior false accusations outside the scope of rape shield protections
because we conclude that even if Rule 412 was not applicable here,
the evidence could properly have been excluded under Rule 403 for
the same core reasons that it was excluded by the district court under
Rule 412.4 Under Rule 403, otherwise relevant evidence may be
excluded "if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury." Unfair prejudice occurs when there is"a genuine risk that the
emotions of the jury will be excited to irrational behavior, and . . . this
risk is disproportionate to the probative value of the offered evi-
dence." United States v. Ham, 998 F.2d at 1247, 1252 (4th Cir. 1993)
(quoting United States v. Masters, 622 F.2d 83, 87 (4th Cir. 1980)).
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3 Rule 412 was amended to substitute the language "[e]vidence offered
to prove that any alleged victim engaged in other sexual behavior" for
"reputation or opinion evidence of the past sexual behavior of an alleged
victim." See Pub.L.No. 103-322, 108 Stat. 1919 (1994).
4 Although the district court did not explicitly base its evidentiary rul-
ing on Rule 403 and the Government does not raise this argument on
appeal, we may affirm the district court's ruling on any basis apparent
in the record unless prejudice ensues. See Adams v. Star Enterprise, 51
F.3d 417, 424 n.9 (4th Cir. 1995); Fleet Nat. Bank v. Anchor Media Tele-
vision, Inc., 45 F.3d 546, 553 (1st Cir. 1995). Because in the context of
this case the analysis for exclusion of this evidence, hence the relevant
arguments pro and con upon the issue are essentially the same, no preju-
dice to Berkley can result from our considering the propriety of its exclu-
sion under Rule 403.

                    5
We have reviewed the sealed materials which the district court
inspected in camera and conclude that for essentially the same reasons
the district court excluded evidence of their contents under Rule 412,
it could properly have excluded the evidence on the basis that, under
Rule 403, "its probative value [was] substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury." To indicate why, it suffices for our purposes to say only that
the materials, in the form of a social worker's report, indicate that
Angela had (sometime in 1993) made an accusation of forcible sexual
assault by identified persons. There is no indication from the materi-
als, nor from evidence of record, that charges on the earlier accusation
were prosecuted.

In the first place, the facts revealed in the materials are of limited
relevance to the offense charged. The earlier accusation was made
under different circumstances than those involved in the accusation
against Berkley. The accusation against Berkley involved consensual
sexual relations; the earlier accusation was of a forcible gang rape.
This lack of similarity obviously lessens their relevance to the accus-
er's credibility or veracity respecting the charge being prosecuted. Cf.
Bartlett, 856 F.2d at 1088, n.25 (relying upon the difference between
old and new allegations of rape as factor which supported exclusion
under Rule 412).

Relevance is even more critically lessened by the failure of the
materials to demonstrate that the earlier accusation was in fact false.
The materials are silent, inconclusive at most, on the matter. They
indicate nothing beyond the fact that, in response to Angela's accusa-
tion, a named law enforcement official "was gathering evidence." Fur-
thermore, even if it were assumed that there was not a prosecution,
that of course, given the many reasons for failure to prosecute, would
not demonstrate with sufficient assurance for the purpose at hand that
the accusation was false. In this statutory rape case, the only possible
relevance of prior accusations would be to prove a pattern of false
accusations that drew in question the veracity of the accusation at
issue, and neither the sealed materials nor any other proffered evi-
dence could have provided that necessary evidentiary link here.

While the materials were therefore of questionable relevance, their
potential for undue prejudice and confusion of the issues was

                    6
extremely high. Aside from the obvious personal embarrassment
involved in their admission, they would inevitably risk opening up
confusing factual inquiries of marginal if any relevance to the core
issue of Berkley's guilt. The generally recognized danger, obviously
present here, is that "in attempting to dispute or explain away the evi-
dence thus offered, new issues will arise as to the occurrence of the
instances and similarity of the conditions, . . . and thus . . . the trial
will be unduly prolonged, and the multiplicity of minor issues will be
such that the jury will lose sight of the main issue." 2 John Henry
Wigmore, EVIDENCE § 1440, at 428 (3d ed. 1940) (quoted in 22
Charles Alan Wright and Kenneth W. Graham, Jr., F EDERAL PRACTICE
AND PROCEDURE § 5216, at 286 (1978)). On balance, relevance of the
proffered evidence here was heavily outweighed by its potential for
unfair prejudice, thereby justifying its exclusion under the general rel-
evance/prejudice standard of Rule 403.

In light of the proffered evidence's limited relevance and potential
for confusion and unfair prejudice, we conclude that the district court
acted well within its discretion in refusing to allow cross-examination
respecting the prior accusation of rape.

AFFIRMED

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