                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PUBLISH
                                                                      May 1, 2007
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,
       v.                                               No. 06-2126
 M EL LAM BERT V ELARDE,

             Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                  FOR T HE D ISTRICT OF NEW M EXICO
                       (D .C . N O. C R N o. 98-391 LH )


M arc M . Lowry (Peter Schoenburg with him on the briefs), Rothstein, Donatelli,
Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque, New M exico,
for Defendant-Appellant.

J. M iles Hanisee, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New M exico, for Plaintiff-
Appellee.


Before HA RTZ, A ND ER SO N, and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.


      M el Velarde, who was convicted of sexually abusing a minor within Indian

country, has filed a motion for a new trial under Rule 33(b) of the Federal Rules
of Criminal Procedure. He claims that the government violated his rights under

Brady v. M aryland, 373 U.S. 83 (1963), by suppressing evidence that L.V., the

minor victim, falsely accused her school teacher and vice principal of

inappropriate touching. Velarde argues that had the government disclosed this

evidence, he could have impeached L.V. at trial, and the result of his trial would

have been different.

      The district court initially scheduled an evidentiary hearing at which M r.

Velarde would have been able to subpoena certain otherwise uncooperative

witnesses and determine the nature of L.V.’s false accusations, if that is what they

were, and establish whether the government was aware of them. Later, however,

the court sua sponte cancelled the evidentiary hearing and denied M r. Velarde’s

motion for a new trial on the ground that he had failed to introduce admissible

evidence in support of his Brady claim. W e hold that the district court erred by

denying M r. V erlarde’s motion without granting an opportunity for discovery.

W e therefore VACATE the district court’s order and REM AND for further

proceedings consistent with this opinion.

                       FA C TS A N D PROCEDURAL HISTORY

      1.     The Jury Trials and R ule 33 M otion

      In M arch 1999, M el Velarde was convicted by a jury of sexually abusing a

minor within Indian country in violation of 18 U.S.C. §§ 1153, 2241(c),

2246(2)(A). L.V., the alleged minor victim, is the daughter of the w oman M r.

                                         -2-
Velarde was dating at that time. No one else saw the alleged crime, and there was

no corroborating medical evidence, so M r. Velarde was convicted almost entirely

on L.V.’s testimony. M r. Velarde appealed his conviction and this Court

reversed, holding that the district court erroneously admitted expert testimony

concerning L.V.’s propensity for truthtelling. United States v. Velarde, 214 F.3d

1204, 1210–11 (10th Cir. 2000).

      The government elected to retry M r. Velarde. During his second trial,

which occurred in September 2001, L.V. testified that M r. Velarde took her from

the top bunk of her brothers’ bed (her younger brother was also sleeping in the

top bunk, and her older brother was sleeping in the lower bunk) into the hallway

and held her mouth shut while he “tried to stick his private part in [her] private

part.” R. V ol. III, at 255. M r. V elarde’s theory of the case was that L.V.

fabricated those allegations to get back at him because when he spent the night at

her mother’s house he displaced L.V. from her mother’s bed, L.V.’s usual

sleeping place. This second trial resulted in another conviction, which this Court

affirmed. United States v. Velarde, 88 F. App’x 339 (10th Cir. 2004).

      In September 2004, three years after his second trial, M r. Velarde filed a

motion under Rule 33(b)(1) of the Federal Rules of Criminal Procedure seeking a

new trial. He alleged that the government violated his Brady rights by failing to

disclose before his second trial evidence that was favorable to him and material.

Specifically, M r. Velarde claimed that in the days immediately preceding his

                                          -3-
second trial, L.V. falsely accused her school teacher and the school’s vice

principal of inappropriately touching her. He asserted that, because the case

hinged largely on w hether L.V .’s testimony was credible, evidence that L.V.

falsely accused other men of inappropriate touching could have impeached L.V.

and led to a different result.

      M r. Velarde learned of L.V.’s apparently false accusations from Phil

Gallegos, another teacher at L.V.’s school who was L.V.’s teacher’s union

representative. M r. Gallegos testified in an affidavit that he told FBI Agent Frank

C him its about L.V .’s false accusations before Velarde’s second trial began. H e

also testified that he “reminded Agent Chimit[s] of his legal obligation to fully

disclose this type of evidence.” R. Vol. I, Doc. 334, Ex. A., at 2. The

government countered with Agent Chimits’s affidavit testimony that he “did not

at any time have a conversation with [M r. Gallegos] of the nature described in

Defendant Velarde’s M otion,” nor did he know of L.V.’s second accusations from

any other source prior to the second trial. R. Vol. I, Doc. 314, Ex. 1, at 2.

      2.     The District Court’s Response to M r. Velarde’s Brady M otion

      Faced with the contradictory Gallegos and Chimits affidavits, the district

court set an evidentiary hearing. R. Vol. I, Doc. 349. The order stated that “[t]he

Court’s initial task is to determine whether a conversation with the content

described in the Gallegos affidavit, did or did not occur.” Id. at 4. The court

ordered the parties to “be prepared to present substantive evidence as to the

                                          -4-
specific content of a conversation between Gallegos and Chimits.” Id. at 5. The

court also ordered M r. Velarde to present at the hearing “the substantive, strong,

exculpatory, admissible evidence that he intends to present at trial, i.e., the ‘new

evidence’ on which he has based his motion.” Id. at 7.

      Soon after the district court issued this order, M r. Velarde moved the court

to issue subpoenas under Fed. R. Crim. P. 17(b) to compel the attendance of

Gallegos, L.V., and L.V.’s principal, vice principal, and teacher. R. Vol. I, Doc.

350, at 1. These witnesses were to be the source of the “substantive, strong,

exculpatory, admissible” new evidence that the court ordered him to introduce.

M r. Velarde contended that because the allegations implicated the school

officials’ fitness for continued employment, subpoena power w as necessary to

compel their cooperation.

      Approximately one week after M r. Velarde sought these subpoenas, and

before the court took any action on his motion, the district court sua sponte

vacated the evidentiary hearing. R. Vol. I, Doc. 351, at 1. The court stated that

“[r]ather than proceed with a costly and time-consuming evidentiary hearing, as

well as potentially with at least a portion of a new trial, the Court determines that

it is prudent, at this juncture, to determine the ultimate admissibility of such

evidence, if established.” Id. at 1–2. The court ordered the parties to brief

whether the evidence would be admissible under Fed. R. Evid. 412 and “to appear




                                          -5-
for legal arguments,” id. at 1, at “a strictly legal hearing” after the briefing was

complete, id. at 3.

      The parties submitted briefs as directed and appeared for the “strictly legal

hearing” at the appointed time. But when the hearing began, the district judge

immediately asked defense counsel to give “a statement of exactly what the new

evidence is that the defendant wishes to or claims to have found that justifies a

new trial.” R. Vol. VI, at 2. Defense counsel offered what the district court later

characterized as a “proffer,” R. Vol. I, Doc. 357, at 4, 6, based on conversations a

paid defense investigator had with L.V.’s teacher and vice principal.

      According to defense counsel, L.V.’s teacher told the investigator that he

was summoned to the principal’s office in the week after September 11, 2001,

where L.V. and her mother were present. He was asked, “W hat did you do to

[L.V.], if [you] touched her inappropriately.” R. Vol. VI, at 5. He denied the

charge. The principal then asked L.V. why she did not bring the incident to the

attention of the vice principal. L.V. responded that she did not like the vice

principal “because he touches me funny too.” Id. at 5–6. Her teacher w as told to

leave the office, and he “never knew what happened afterwards.” Id. at 6.

      The investigator’s conversations with the vice principal largely concerned

the school’s investigation into L.V.’s charges. The investigation involved the

vice principal, a school counselor, and “others.” Id. at 6–7. Initially, the vice

principal discussed the school’s investigation with the defense investigator. Id. at

                                           -6-
6. He told the investigator “that nothing came of it, and that they didn’t think

[L.V.] was telling the truth.” Id. at 6. Later, however, he clammed up, stating

that “he couldn’t recall.” Id. at 7. He provided no further information to the

investigator. And the school counselor who the vice principal stated “would have

handled this” told the defense investigator that “she had no recall of the

investigation.” Id. at 9.

      The defense subpoenaed the school records, but according to defense

counsel, “there is [sic] no records to be had” because they are purged on an

annual basis. Id. at 7.

      Defense counsel informed the district court that the defense wished to

present the testimony of L.V.’s teacher and the defense investigator, and wished

to subpoena the vice principal and the principal, Bill Reese. He explained to the

court that “the underlying allegations of inappropriate touching are admissible, as

well as M r. Gallegos’ testimony that he, in fact, informed Agent Chimits about

the allegations.” Id. at 8. In further discussion with the district court, defense

counsel stated that the admissible evidence the defense would present relates to

“[the teacher’s] comments, M r. Reese’s discussion with the mother, and the

victim, and [the vice principal],” as well as “the investigation, if any, [that] was

done by [the vice principal].” Id. at 8–9.

      The district court attempted to pin down the defense regarding the exact

nature of L.V.’s allegations against her teacher:

                                          -7-
M R. LOW RY: [L.V.’s teacher]— and this is in [the investigator’s]
report— said that when the principal, Bill Reese, asked her, she
responded— [the teacher] recalls LV saying, “Because he scares me,”
referring to [the vice principal].
       And then, when M r. Reese asked, “W hy does he scare you,” she
added, “He touches me.”

TH E C OU RT: Well, the first time you stated that you said, “He
touches me funny.”

M R. LOW RY: W ell, I apologize. This is what I have in actual quotes
from—

THE COURT: “He touches me.”

M R. LOW RY: “He touches me.”

THE COURT: And you don’t know where?

M R. LOW RY: No, Your Honor. But this was [L.V.]’s explanation to the
principal about why she was afraid to go to the vice-principal to report the
allegations against [her teacher].

*   *   *    *   *

THE COURT: [W hat is L.V.’s teacher’s] testimony going to be? And
that’s what you have to tell me. And what you’ve told me, the way I
understand it, was that it was inappropriate touching.

M R. LOW RY: [The teacher] wasn’t privy to the conversation that
took place in the principal’s office before he arrived. W hat [the
teacher] knows was that he was summoned into that office.

THE COURT: W ell, who is going to testify what kind of touching it
was, and what will that testimony be? W hat I’ve understood from
you— and that’s what I asked you for— and what I have understood
from you is that [L.V.’s teacher] touched her inappropriately.

M R. LOW RY: And I think that we have to make that assumption,
given what we know. And I think, if we want [a] more particularized
description, it would take—

                                  -8-
      THE COURT: If you’re going to give me any more particular a
      description, it’s got to be now. This case was filed in 1998, and it’s
      now [2006], and I’m going to get rid of this case one way or the
      other, okay? So you have to tell me exactly what— how the touching
      was described, and who is going to say that.

Id. at 9–10, 19–20.

      Defense counsel explained to the district court why it was necessary to

subpoena witnesses in order to obtain the details regarding L.V.’s accusation:

      M R. LOW RY: I want to step back for just a second and address the
      underlying allegations, and you wanted more specificity, and I
      wholeheartedly understand why. But I want to address the context
      within which we’re talking about— we’re talking about school
      officials, teachers, in an environment that they deal directly on a day-
      to-day basis with children. And these individuals, to say that they
      are concerned is understated. But an allegation of sexual touching is
      sort of a death knell to a career for a teacher—

      THE COURT: I understand that.

      M R. LOW RY: — or a school official. At the onset, we’re dealing
      with a huge psychological barrier for people to even discuss with us
      the nature of touching, as it were. So I’m trying to be fully candid
      with Your Honor, but I also want the Court to be well aware of the
      circumstance that we’re dealing with. And it makes it exceedingly
      difficult to get, you know, highly descriptive, especially
      self— perhaps self-discriminating descriptions of touching. So I just
      wanted to place that in context for the Court.

Id. at 32–33.

      Following the hearing, the district court issued a w ritten order denying M r.

Velarde’s Rule 33 motion on the ground that “the Defendant’s ‘newly discovered

evidence’ is not admissible.” R. Vol. I, Doc. 357, at 6. First, the district court

concluded that the Gallegos affidavit did not contain reliable or admissible

                                          -9-
evidence, largely because it was “based on hearsay.” Id. Nor did “the proffer by

defense counsel at the M arch 15 hearing” provide “any admissible evidence” that

L.V. had falsely accused her teacher and vice principal of inappropriate touching.

Id. The court explained:

       There is no proof before the Court as to whether L.V. indeed accused [her
       teacher] of an inappropriate touching. W hat is in the record is that [her
       teacher] denied touching her inappropriately. W hile there is evidence that
       L.V. states that [her vice principal] “touches me,” there is no evidence that
       the accusation is false. Further, there is no proof before the Court as to
       whether or not L.V. accused [her teacher] and/or [her vice principal] of
       inappropriate touching of a sexual nature.

Id. at 7.

       Second, the district court concluded that “[e]ven if Defendant’s evidence

were more complete and stronger,” it lacked probative value for M r. Velarde’s

defense “because the circumstances of the two incidents differ so substantially.”

Id. at 7. Not only did the alleged incident at school occur two to three years after

the incident charged in the indictment, but “these alleged accusations against

[L.V.’s teacher] and [vice principal] involved unspecified types of touching that

have yet to be described to the Court. There is certainly no proof that these other

alleged incidents were of a sexual nature.” Id. The court observed that “[t]he

alleged [teacher/vice principal] incidents could have consisted of a touching such

as shove or other minor assault.” Id. at 7.

       The court then analyzed the proffered evidence under Federal Rules of

Evidence 608(b) and 403 and the Confrontation Clause. Extrinsic evidence was

                                         -10-
not admissible under Rule 608(b), according to the court, because it involved a

collateral mater: “The lack of similarity of the events surrounding the prior and

present allegations, and the slight degree of probative value of the proffered

evidence on issues that are not collateral, such as L.V.’s credibility, bias, interest

and motives, prompt the Court to exercise its discretion under Rule 608(b) and

find the proffered evidence is inadmissible.” Id. at 8–9. The court also found

that “the relevance and probative value of this evidence is extremely slight and

the danger of confusion and prejudice is great,” leading the court to exclude it

under R ule 403. Id. at 9. Finally, the court rejected the defendant’s argument

that he has a right to admission of this evidence under the Confrontation Clause

on the ground that it “is too attenuated in terms of what type of touching and in

terms of time, to be probative,” and because “there is no proof before the Court

that the statement ‘he touches me’ is false.” Id. at 10. The court concluded:

       Defendant’s evidence falls far short of showing a scheme of fabrication by
       L.V. Certainly this evidence is not relevant to show false accusations of a
       similar nature, with the same intent, motivation and plan or to establish
       possible biases, prejudices, or ulterior motive of L.V., which are “always
       relevant as discrediting the w itness and affecting the w eight of [her]
       testimony.” Davis v. Alaska, 415 U.S. 308, 316 (1974).

Id. at 10 (alteration in original).

       M r. Velarde now appeals from that order.




                                          -11-
                                   D ISC USSIO N

      A defendant who seeks a new trial under Rule 33 based on an alleged Brady

violation must show that “(1) the prosecution suppressed evidence, (2) the

evidence was favorable to the defendant, and (3) the evidence was material.”

United States v. Quintanilla, 193 F.3d 1139, 1149 & n.10 (10th Cir. 1999). The

government has not contested that M r. Velarde would satisfy the second element,

so w e lim it our inquiry to the first and third elements. W e review de novo the

district court’s ruling on M r. Velarde’s Rule 33 motion because it alleges a Brady

violation. United States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003).

      A. Did the prosecution suppress potentially exculpatory evidence?

      “Due process mandates disclosure by the prosecution of all evidence that

favors the defendant and is ‘material either to guilt or punishment.’” Robinson,

39 F.3d at 1118 (quoting Brady, 373 U.S. at 87). This duty to disclose extends to

prosecutors, police, and other government investigators. Kyles v. Whitley, 514

U.S. 419, 437–38 (1995). Accordingly, a defendant may base a Brady claim on a

government investigator’s failure to disclose evidence material to guilt or

punishment, even when the prosecutor personally did not know of that evidence.

See id.

      M r. Gallegos and Agent Chimits presented conflicting evidence to the

district court regarding whether the prosecution suppressed potentially material

evidence. The district court did not hold an evidentiary hearing to resolve this

                                         -12-
conflict, but instead ruled that even if the government suppressed the information,

M r. Velarde is not entitled to a new trial because the suppressed evidence would

not have been admissible. For purposes of this appeal, therefore, we will assume

(as the district court apparently did) that the defendant is correct that M r.

Gallegos informed the government regarding L.V.’s supposed false accusations

and that the government failed to provide this information to the defense. This

question— whether suppression actually occurred— is, of course, open on remand.

If, on remand, the district court concludes after an evidentiary hearing that

Gallegos did not make the alleged statement to Chimits, there is no need for

further proceedings to determine the materiality of the evidence.

      B. W as the petitioner entitled to discovery?

      Evidence is “material” under Brady “‘only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome.’” United States v. Robinson,

39 F.3d 1115, 1118 (10th Cir. 1994) (quoting United States v. Bagley, 473 U.S.

667, 682 (1985) (Blackmun, J.)). The district court denied M r. Velarde’s Rule 33

motion on the ground that the evidence regarding L.V.’s supposed false

accusations was neither admissible nor material. The court reached that

conclusion, however, without considering whether defense counsel should be

given leave to conduct discovery into the facts supporting M r. Gallegos’s

                                          -13-
allegations. The case law in this area, as we discuss below, is obscure and

apparently not well understood. The district court’s course of action— and

defense counsel’s failure to point out the correct course more precisely— is

therefore understandable. Nevertheless, we conclude that the court erred by

failing to grant leave to conduct discovery.

      This case arises at the intersection of evidentiary hearings and fact

discovery in the Rule 33 context. Our precedent speaks more frequently to the

former and makes clear that a district court is “not required to hold” an

evidentiary hearing before resolving a motion for a new trial, United States v.

Sutton, 767 F.2d 726, 729 (10th Cir. 1985), particularly “when the record is

complete or the petitioner raised only legal claims that can be resolved without

the taking of additional evidence,” Lawrence v. Lensing, 42 F.3d 255, 259 (5th

Cir. 1994) (internal quotation marks omitted), cited in Pearl, 324 F.3d at 1215.

This is because “[t]he purpose of an evidentiary hearing is to resolve conflicting

evidence.” Anderson v. Attorney Gen., 425 F.3d 853, 860 (10th Cir. 2005). As

we stated in Anderson, “‘[w]hether the record raises a genuine factual issue

[requiring an evidentiary hearing in a § 2254 proceeding] is decided by the same

standards used to decide a Rule 56 motion for summary judgment.’” Id. (quoting

East v. Scott, 55 F.3d 996, 1002 (5th Cir. 1995)) (brackets in original); see

Blackledge v. Allison, 431 U.S. 63, 80 (1977). Thus, the court is required to

conduct the evidentiary hearing only if the admissible evidence presented by

                                         -14-
petitioner, if accepted as true, would w arrant relief as a matter of law . M r.

Velarde does not satisfy that standard here because, by his own admission, he was

unable to procure the necessary evidence from the school officials without

judicial compulsion.

      In limited circumstances, however, a defendant who is unable to submit

evidence to the court sufficient to warrant an evidentiary hearing, is able to make

a showing that further investigation under the court’s subpoena power very likely

would lead to the discovery of such evidence. In that rare case, what should the

defendant do?

      The answer, we think, is to request leave to conduct discovery. Discovery

is authorized in habeas corpus cases, an analogous post-conviction proceeding.

See Blackledge, 431 U.S. at 81–82, citing Rule 6 of the Rules Governing Habeas

Corpus. Courts have authority to allow discovery based on the All W rits Act, 28

U.S.C. § 1651, a “legislatively approved source of procedural instruments

designed to achieve the rational ends of the law” that “courts may rely upon . . .

in issuing orders appropriate to assist them in conducting factual inquiries.”

Harris v. Nelson, 394 U.S. 286, 299 (1969) (internal quotation marks and

citations omitted). According to the Supreme Court, “where specific allegations

before the court show reason to believe that the petitioner may, if the facts are

fully developed, be able to demonstrate that he is” entitled to a new trial, “it is the

duty of the court to provide the necessary facilities and procedures for an

                                          -15-
adequate inquiry.” Id.; see also United States v. Wolfson, 413 F.2d 804, 808 (2d

Cir. 1969) (in dictum, suggesting that Harris applies to Rule 33 motions); 26

James W m. M oore et al., M oore’s Federal Practice § 633.21[3], at 633-50 (3d ed.

2006). In fulfilling this duty, a district court has broad discretion to fashion

discovery mechanisms suitable to the case before it. W e construe M r. Velarde’s

request for the issuance of subpoenas in connection with the evidentiary hearing

in this case as a request for discovery. 1

      Based on the record here, we conclude that M r. Velarde’s case fits in the

rare class of cases described above. Defense counsel proffered affidavit evidence

from M r. G allegos that, just a few days before M r. Velarde’s trial— at which L.V .

accused Velarde of inappropriate touching— L.V. accused her teacher and vice

principal of some (unspecified) form of inappropriate touching, that the school

investigated the allegations, and that the investigation concluded that L.V. was

lying. Defense counsel could not identify the precise nature of the “touching”

because L.V.’s teacher was not informed of what he was accused; the vice

principal, after initially discussing the school investigation with the defense,

claimed not to remember any more; the principal would not talk to the defense;

and the school records of the investigation had been destroyed. Defense counsel

      1
       Our decision to construe M r. Velarde’s m otion as a request for discovery is
based on the particular context of this litigation, including the absence in this
Circuit of an established practice of discovery in cases of this sort. In future
cases, depending on the particular circumstances, a movant’s failure to request
discovery may constitute a w aiver.

                                             -16-
explained that further details about L.V.’s accusation and evidence of its falsity

were known only to school officials who, for professional reasons, would discuss

the matter only if compelled by subpoena power.

      If the evidence proffered by M r. Velarde’s counsel is accurate, it is more

likely than not that L.V. in fact made allegations of inappropriate touching against

her teacher and principal, and that the school investigated these allegations and

found them false. Discovery in this case would therefore not be a mere fishing

expedition based on the defendant’s mere hopes of finding exculpatory evidence.

Rather, there is a firm evidentiary basis for believing such evidence likely exists.

      C. W as the evidence material under Brady?

      The question remains whether the exculpatory evidence would be material

under Brady. The district court ruled as a matter of law that any evidence of

alleged touching by school officials— the specifics of which were still

unascertained— would be inadmissible under Rules 608(b) and 403 of the Federal

Rules of Evidence. To a great extent, that ruling was reached on the basis of the

evidence actually submitted by defense counsel, as opposed to the evidence that

could be elicited through discovery. See R. Vol. I, Doc. 357, at 7 (“There is no

proof before the Court as to whether L.V. indeed accused [her teacher] of

inappropriate touching. W hat is in the record is that [he] denied touching her

inappropriately. . . . Further, there is no proof before the Court as to whether or

not L.V. accused [her teacher] and/or [her vice principal] of inappropriate

                                         -17-
touching of a sexual nature.”) W hen determining whether to conduct discovery,

however, the issue cannot be what the defense has already proved, but what the

defense might reasonably be able to prove if discovery is conducted.

      The government argues that even if M r. Velarde were able to produce

evidence that L.V. made false accusations of inappropriate touching against her

teacher and vice principal, such evidence would be inadmissible at trial and its

suppression therefore would not be a violation of Brady. In general, the Federal

Rules of Evidence do not permit the introduction of evidence regarding collateral

matters solely for the purpose of impeaching the credibility of a witness. Rule

608(b) prohibits “prov[ing] by extrinsic evidence” a “specific instance[] of the

conduct of a w itness, for the purpose of attacking or supporting the w itness’

character for truthfulness.” Fed. R. Evid. 608(b). See White v. Coplan, 399 F.3d

18, 26 (1st Cir. 2005) (on habeas, concluding that prisoner was entitled to cross-

examine complainants regarding prior accusations but noting that court is “not

endorsing any open-ended constitutional right to offer extrinsic evidence”);

United States v. Bartlett, 856 F.2d 1071, 1089 (8th Cir. 1988) (exclusion of

extrinsic evidence of prior allegedly false allegation of rape is constitutional and

proper under Rules 412 and 608(b)); Benn v. Greiner, 294 F. Supp. 2d 354, 365

(E.D.N.Y. 2003) (W einstein, J.) (state court’s preclusion of prisoner’s cross-

examination of victim regarding prior allegations of sexual abuse entitled him to

habeas relief, but the state court “could . . . have precluded further inquiry or

                                         -18-
extrinsic proof in order to avoid complicating the trial”), rev’d, 402 F.3d 100 (2d

Cir. 2005) (holding error was harmless). The reason for excluding such extrinsic

evidence is to avoid mini-trials that may consume a disproportionate amount of

time and confuse the issues. As the First Circuit explained in Ellsworth v.

Warden, 333 F.3d 1, 8 (1st Cir. 2003) (en banc), “[t]he theory, simple enough, is

that evidence about lies not directly relevant to the episode at hand could carry

courts into an endless parade of distracting, time-consuming inquiries.”

      In United States v. M agallanez, 408 F.3d 672 (10th Cir. 2005), on which

M r. Velarde relies, we held that the government was properly allowed to call a

rebuttal witness to contradict a false statement made by a witness on direct

examination. Accordingly, if, on direct examination, L.V. were to testify that she

had never made a false accusation of sexual abuse, M agallanez would support the

introduction of the evidence (assuming it exists) regarding her false accusations

against her teacher and vice principal. If, however, the issue did not arise on

direct, the defense would be permitted to cross-examine her regarding the

supposed false accusations at school, but M agallanez would not permit M r.

Velarde to introduce extrinsic evidence regarding such accusations.

      To be sure, some authority supports admission of such extrinsic evidence,

but it has not been accepted by this Circuit. One court in a habeas proceeding

under 28 U.S.C. § 2254 noted that the state court might allow such testimony, at

least in some limited circumstances. Ellsworth, 333 F.3d at 4. In that case, the

                                         -19-
defendant, who was accused of sexually molesting a boy at a residential treatment

center, sought to introduce evidence that the boy had falsely accused caretakers at

a prior care center of sexually molesting him. The First Circuit noted that New

Hampshire allows extrinsic evidence of a prior false accusation of sexual assault

if the prior accusation is similar to the new accusation and the defendant can

show that the prior accusation was “demonstrably false.” Id. (internal quotation

marks omitted). And a federal district court, in an opinion affirmed in an

unpublished circuit decision, allowed extrinsic evidence of three prior allegations

that the complainant had admitted in writing to be false. See United States v.

Stamper, 766 F. Supp. 1396, 1406 (W .D.N.C. 1991), aff’d sub nom. In re One

Female Juvenile Victim, 959 F.2d 231 (4th Cir. 1992) (unpublished decision)

(appeal by witness only). 2

      M oreover, as M r. Velarde argues, there may be circumstances in which the

Confrontation Clause would entitle a criminal defendant to introduce highly

probative exculpatory extrinsic evidence. But if such constitutional exceptions

exist, they are narrow. See Holmes v. South Carolina, 126 S. Ct. 1727, 1732

(2006) (“W hile the Constitution . . . prohibits the exclusion of defense evidence

under rules that serve no legitimate purpose or that are disproportionate to the

ends that they are asserted to promote, w ell-established rules of evidence permit

      2
        In that case, the government, relying on Fed. R. Evid. 412, had conceded
that the evidence would otherwise be admissible under Fed. R. Evid. 404(b) and
608. See 766 F. Supp. at 1406.

                                        -20-
trial judges to exclude evidence if its probative value is outweighed by certain

other factors such as unfair prejudice, confusion of the issues, or potential to

mislead the jury. . . . [T]he Constitution permits judges to exclude evidence that

is repetitive, only marginally relevant or poses an undue risk of ‘harassment,

prejudice, or confusion of the issues.” (citations, ellipsis, brackets, and internal

quotation marks omitted)); United States v. Scheffer, 523 U.S. 303, 308 (1998);

Ellsworth, 333 F.3d at 6 (“[C]onfrontation clause objection is pretty well limited

to extreme cases where the state restriction is patently unreasonable . . . .”);

United States v. Gomes, 177 F.3d 76, 82 (1st Cir. 1999) (“[Confrontation Clause]

challenge is tenable only where the restriction is manifestly unreasonable or

overbroad.”). Neither this Court nor the Supreme Court has held that a defendant

has a constitutional right to introduce extrinsic evidence under circumstances

analogous to these.

      But we need not definitively resolve w hether extrinsic evidence of L.V.’s

false accusations (assuming it exists and assuming it was withheld by the

government) would be admissible on retrial. Even assuming such evidence would

not be admissible, discovery could have led to facts that the defense could use to

effectively cross-examine L.V. about her truthfulness. W hile Rule 608(b) makes

this type of cross-examination subject to the district court’s discretion, it may

well be an abuse of discretion not to allow such cross-examination in a criminal

case w here the vast majority of inculpatory evidence is the alleged victim’s

                                          -21-
testimony. See White, 399 F.3d at 26 (on habeas, concluding that prisoner was

entitled to cross-examine complainants regarding prior accusations); Benn, 294 F.

Supp. 2d at 365 (state court’s preclusion of prisoner’s cross-examination of

victim regarding prior allegations of sexual abuse entitled him to habeas relief,

but the state court “could . . . have precluded further inquiry or extrinsic proof in

order to avoid complicating the trial”), rev’d, 402 F.3d 100 (2d Cir. 2005)

(holding error was harmless); see also M athis v. Berghuis, 90 F. App’x 101, 107

(6th Cir. 2004) (unpublished decision) (affirming conditional grant of habeas

relief to state prisoner based on possibility of cross-examination of complainant

regarding prior rape allegations even though the applicable rule of evidence “does

not generally permit” extrinsic evidence on the issue).

      W e believe those holdings are applicable here. L.V.’s testimony was

virtually the only evidence of M r. Velarde’s guilt, and the fact (if it is a fact) that

near the time of trial she made similar false accusations against two other men

creates a reasonable probability that, had the defense known of this evidence, the

result of the proceeding would have been different. If, under the circumstances, it

would have been an abuse of discretion for the district court to preclude the

defense from cross-examining L.V. about these prior false accusations, it is a

Brady violation for the government to withhold from the defense the information

on which it would conduct such a cross-examination.




                                           -22-
      W e reiterate, however, that if the court on remand w ere to conduct an

evidentiary hearing to resolve the conflict in testimony between FBI Agent

Chimits and M r. Gallegos, and conclude that the government did not suppress the

information regarding L.V.’s supposed false accusations, the Brady question

could be resolved on the first prong of the analysis, without need for discovery.

                                  C ON CLU SIO N

      W e VACATE the district court’s order denying M r. Velarde’s Rule 33

motion and REM AND for proceedings consistent with the Brady analysis outlined

above. W e do not hold that M r. Velarde is entitled to a new trial. W e hold only

that, on this record, the district court erred in holding that the suppressed

evidence was immaterial without first either resolving the disputed question

regarding whether the government suppressed information regarding L.V.’s

supposed false accusations at school or allowing discovery to determine the

nature and veracity of L.V.’s supposed accusations against her teacher and vice

principal. The district court has broad discretion to determine the type and manner

of any discovery.




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