No. 11-1504 -            State v. Jack J.
                                                                      FILED
                                                                   April 11, 2013
                                                                  released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
                                                                SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA
Davis, J., dissenting:

              The majority affirmed the defendant’s convictions for sexual offenses against

his girlfriend’s adolescent daughter. In doing so, the majority’s opinion affirmed the trial

court’s ruling prohibiting the defendant from presenting evidence that the alleged victim

previously had falsely accused at least twelve other people of sexual misconduct toward her.

Because I believe the defendant had a constitutional right, under the facts of this case, to

inform the jury that the alleged victim previously had made numerous, unfounded allegations

of sexual misconduct by other people, I dissent.1



    The Defendant’s Constitutional Right to Confront His Accuser Was Violated

              “Probably no one, certainly no one experienced in the trial of lawsuits, would

deny the value of cross-examination in exposing falsehood and bringing out the truth in the

trial of a criminal case.” Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13




       1
        I wish to be perfectly clear. This case was not about informing the jury that the
alleged victim actually had engaged in sexual relations with others. The sole issue in this
case was informing the jury that the alleged victim previously had made numerous,
unfounded sexual misconduct allegations against others.

                                             1

L. Ed. 2d 923 (1965). Indeed, “[t]he right to confront and to cross-examine witnesses is

primarily a functional right that promotes reliability in criminal trials.” Lee v. Illinois, 476

U.S. 530, 540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514 (1986). For this reason, the United

States Supreme Court scrupulously has guarded against “restrictions imposed by law or by

the trial court on the scope of cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 18,

106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985). In fact, the Confrontation Clause of the Sixth

Amendment of the United States Constitution guarantees a criminal defendant the right to

be confronted with the witnesses against him or her. Moreover, the Supreme Court has held

that the rights under the Confrontation Clause mean more than merely being allowed to

confront a witness physically. In Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989,

998, 94 L. Ed. 2d 40 (1987), the Court held that “[t]he Confrontation Clause provides two

types of protections for a criminal defendant: the right physically to face those who testify

against him, and the right to conduct cross-examination.” See also Douglas v. Alabama, 380

U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934 (1965) (“[A] primary interest secured

by [the Confrontation Clause] is the right of cross-examination.”). The critical importance

of cross-examination has been set out as follows:

                     Cross-examination is the principal means by which the
              believability of a witness and the truth of his testimony are
              tested. Subject always to the broad discretion of a trial judge to
              preclude repetitive and unduly harassing interrogation, the
              cross-examiner is not only permitted to delve into the witness’
              story to test the witness’ perceptions and memory, but the
              cross-examiner has traditionally been allowed to impeach, i.e.,
              discredit, the witness. . . . A more particular attack on the

                                               2

              witness’ credibility is effected by means of cross-examination
              directed toward revealing possible biases, prejudices, or ulterior
              motives of the witness as they may relate directly to issues or
              personalities in the case at hand. The partiality of a witness is
              subject to exploration at trial, and is always relevant as
              discrediting the witness and affecting the weight of his
              testimony.

Davis v. Alaska, 415 U.S. 308, 315-17, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)

(internal quotations and citations omitted). See also Maryland v. Craig, 497 U.S. 836, 845,

110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990) (“The central concern of the Confrontation

Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting

it to rigorous testing in the context of an adversary proceeding before the trier of fact.”);

Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923 (1965) (“There

are few subjects, perhaps, upon which this Court and other courts have been more nearly

unanimous than in their expressions of belief that the right of confrontation and

cross-examination is an essential and fundamental requirement for the kind of fair trial which

is this country’s constitutional goal.”).



              The decision in Davis illustrates the problem of denying a defendant the right

to cross-examine a key witness with relevant evidence that attacks the witness’ credibility.

The defendant in Davis was convicted of burglary and grand larceny. During the trial, the

court refused to allow the defendant to cross-examine a key prosecution witness about the

witness’ probation status following an adjudication of juvenile delinquency. The trial court


                                              3

found that, under the state’s laws, such evidence was not admissible. The Supreme Court

reversed the conviction upon finding the defendant’s rights under the Confrontation Clause

were violated:

                    In the instant case, defense counsel sought to show the
             existence of possible bias and prejudice of Green, causing him
             to make a faulty initial identification of petitioner, which in turn
             could have affected his later in-court identification of petitioner.

                     We cannot speculate as to whether the jury, as sole judge
             of the credibility of a witness, would have accepted this line of
             reasoning had counsel been permitted to fully present it. But we
             do conclude that the jurors were entitled to have the benefit of
             the defense theory before them so that they could make an
             informed judgment as to the weight to place on Green’s
             testimony which provided a crucial link in the proof . . . of
             petitioner’s act. The accuracy and truthfulness of Green’s
             testimony were key elements in the State’s case against
             petitioner. . . .

             ....

             [P]etitioner sought to introduce evidence of Green’s probation
             for the purpose of suggesting that Green was biased and,
             therefore, that his testimony was either not to be believed in his
             identification of petitioner or at least very carefully considered
             in that light. Serious damage to the strength of the State’s case
             would have been a real possibility had petitioner been allowed
             to pursue this line of inquiry. In this setting we conclude that
             the right of confrontation is paramount to the State’s policy of
             protecting a juvenile offender.             Whatever temporary
             embarrassment might result to Green or his family by disclosure
             of his juvenile record . . . is outweighed by petitioner’s right to
             probe into the influence of possible bias in the testimony of a
             crucial identification witness.




                                              4

Davis, 415 U.S. at 317-19, 94 S. Ct. at 1110-12, 39 L. Ed. 2d 347. See Olden v. Kentucky,

488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (per curiam) (holding that trial

court’s refusal to allow defendant to impeach victim’s testimony by cross-examining victim

about possible motive to lie deprived defendant of his right to confrontation); Delaware v.

Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986) (precluding

defendant from questioning witness about State’s dismissal of pending public drunkenness

charge against him and concluding that, “[b]y thus cutting off all questioning about an event

. . . that a jury might reasonably have found furnished the witness a motive for favoring the

prosecution in his testimony,” the trial court’s ruling violated the defendant’s rights under

the Confrontation Clause).



              The decision in Davis illustrates the Supreme Court’s general guidelines for

enforcing the Confrontation Clause in the context of limiting cross-examination of a

testifying witness. Federal courts of appeal have addressed the more specific issue of

denying a defendant the right to cross-examine a sexual assault victim regarding her prior

unfounded allegations of sexual misconduct by others. In Redmond v. Kingston, 240 F.3d

590 (7th Cir. 2001), the defendant was convicted by a Wisconsin jury of sexually assaulting

a fifteen-year-old victim. During the trial, the defendant was denied the right to confront the

victim concerning a prior unfounded claim that she had been forcibly raped by another

person. In a habeas corpus appeal to the Seventh Circuit Court of Appeals, the defendant


                                              5

argued that the trial court’s restrictions on his cross-examination of the victim violated his

rights under the Confrontation Clause. The Seventh Circuit agreed:

                      The evidence . . . was not cumulative, or otherwise
              peripheral, considering that testimony by [the victim] was
              virtually the only evidence of Redmond’s guilt that the
              prosecution had. . . . The only evidence that was relevant to her
              credibility in Redmond’s case . . . was that within the preceding
              year she had made up a story about being forcibly raped.
              Whether or not she had had sex with the alleged rapist was
              irrelevant, since Redmond was not prepared to try to prove that
              she had not. For unexplained reasons the Wisconsin court of
              appeals thought that if Redmond’s lawyer had been permitted to
              ask [the victim] whether she had ever made a false charge of
              forcible sexual assault, the door would have been opened to an
              inquiry into whether she had had sex on that occasion at all. We
              cannot think of any reason why. . .

                      And thus the court’s ruling, though ostensibly based on
              the rape-shield statute, derives no support from that statute. The
              statute protects complaining witnesses in rape cases (including
              statutory-rape cases) from being questioned about their sexual
              conduct, but a false charge of rape is not sexual conduct. . . . .
              The false-charge “exception” to the rape-shield statute is not
              really an exception, but rather a reminder of the limited meaning
              of “sexual conduct” as defined in the statute. The only basis for
              the court’s ruling was the general principle of the law of
              evidence . . . that relevant evidence may be excluded if its
              probative value is substantially outweighed by its prejudicial
              (confusing, or cumulative) effect. When that unexceptionable
              rule is applied as it was here to exclude highly probative . . .
              evidence tendered by a criminal defendant that is vital to the
              central issue in the case ([the victim’s] credibility), the
              defendant’s constitutional right of confrontation has been
              infringed. . . . .

Redmond, 240 F.3d at 592 (internal citations omitted). See also Sussman v. Jenkins, 636 F.3d

329, 357 (7th Cir. 2011) (applying Redmond and holding: “The jury reasonably could have

                                              6

concluded that [the victim] was prone to use allegations of sexual abuse against father figures

as a means either of gaining their attention or as a means of punishing them for abandoning

him.”); Kittelson v. Dretke, 426 F.3d 306, 322-23 (5th Cir. 2005) (following Redmond and

holding: “In a case that turned entirely on the credibility of the complaining witness, the state

courts’ restriction on Kittelson’s ability to challenge that credibility violated his

clearly-established confrontation and due process rights and cannot be considered

harmless.”).



               In White v. Coplan, 399 F.3d 18 (1st Cir. 2005), a New Hampshire jury

convicted the defendant of three counts of sexual assault against two young girls. At trial,

the defendant was forbidden to offer evidence that both girls had previously made such

accusations against other persons. In his habeas corpus appeal to the First Circuit Court of

Appeals, the defendant argued that this restriction violated his Confrontation Clause rights.

The First Circuit agreed:


                      In this case, White’s evidence was not merely “general”
               credibility evidence. . . .

                       The evidence in this case was considerably more
               powerful. The past accusations were about sexual assaults, not
               lies on other subjects; and while sexual assaults may have some
               generic similarity, here the past accusations by the girls bore a
               close resemblance to the girls’ present testimony–in one case
               markedly so. In this regard the evidence of prior allegations is
               unusual.


                                               7

                          If the prior accusations were false, it suggests a pattern
                  and a pattern suggests an underlying motive (although without
                  pinpointing its precise character). . . . Many jurors would regard
                  a set of similar past charges by the girls, if shown to be false, as
                  very potent proof in White’s favor.

                         This “if,” of course, is the heart of the matter. If the
                  witness were [sic] prepared to admit on the stand that a prior
                  accusation of similar nature was false, it is hard to imagine good
                  reason for excluding the evidence. Prior admitted lies of the
                  same kind in similar circumstances could powerfully discredit
                  the witness. . . .

                  ....

                      White was accused of serious crimes–witness his
             sentence–and virtually everything turned on whether the two
             girls were to be believed. White had almost no way to defend
             himselfexceptbyimpeachment....[C]ross-examinationtoshowpriorsimilaraccusationsbythegirls...couldeasilyhave
changed the outcome.

                          Evidence suggesting a motive to lie has long been
                  regarded as powerful evidence undermining credibility, and its
                  importance has been stressed in Supreme Court confrontation
                  cases. . . . In our case the nature of the motive may be unknown;
                  but if the prior accusations are similar enough to the present
                  ones and shown to be false, a motive can be inferred and from
                  it a plausible doubt or disbelief as to the witness’ present
                  testimony.

White, 399 F.3d at 24-26 (internal citations omitted). But see Jordan v. Warden, Lebanon

Corr. Inst., 675 F.3d 586 (6th Cir. 2012) (finding no constitutional violation); Piscopo v.

Michigan, 479 Fed. App’x. 698 (6th Cir. 2012) (same); Abram v. Gerry, 672 F.3d 45 (1st Cir.

2012) (same); United States v. Frederick, 683 F.3d 913 (8th Cir. 2012) (same); United States




                                                          8

v. Tail, 459 F.3d 854 (8th Cir. 2006) (same); Boggs v. Collins, 226 F.3d 728, 740 (6th Cir.

2000).



               In the instant case, the majority opinion found that the defendant failed to meet

the standard of proof required to introduce evidence that the alleged victim previously had

falsely accused other persons of sexual misconduct against her. The standard of proof

required to introduce such evidence was set out in State v. Quinn, 200 W. Va. 432, 490

S.E.2d 34 (1997). Under Quinn, the defendant had to establish by “strong and substantial

proof . . . the actual falsity of an alleged victim’s other statements[.]” Syl. pt. 2, in part, id.

(emphasis added). I believe the defendant met his burden of proof under Quinn. I also

believe that the majority opinion superimposed a higher burden than what is required by

Quinn, and this heightened standard violated the defendant’s rights under the Confrontation

Clause.2



         2
        In determining whether restrictions on cross-examination violate the Confrontation
Clause, courts look at: (1) whether the excluded evidence was relevant; (2) whether there
were other legitimate interests outweighing the defendant’s interest in presenting the
evidence; and (3) whether the exclusion of evidence left the jury with sufficient information
to assess the credibility of the witness. United States v. Larson, 495 F. 3d 1094, 1103 (9th
Cir. 2007). See United States v. Roussel, 705 F.3d 184, 194 (5th Cir. 2013) (“The Sixth
Amendment’s Confrontation Clause is violated if the defendant [can] show that a reasonable
jury might have had a significantly different impression of the witness’s credibility if defense
counsel had been allowed to pursue the questioning.” (internal quotations and citation
omitted)); Ortiz v. Yates, 704 F.3d 1026, 1037 (9th Cir. 2012) (“The whole point of the
effective, permissible cross-examination protected by the Confrontation Clause is to diminish
the witness’ credibility with the jury and thereby render a conviction less likely.”).

                                                9

              Under the decision in Quinn,

                     “[a] defendant who wishes to cross-examine an alleged
              victim of a sexual offense about or otherwise introduce evidence
              about other statements that the alleged victim has made about
              being the victim of sexual misconduct must initially present
              evidence regarding the statements to the court out of the
              presence of the jury and with fair notice to the prosecution,
              which presentation may in the court’s discretion be limited to
              proffer, affidavit, or other method[.]

Syl. pt 3, in part, Quinn, 200 W. Va. 432, 490 S.E.2d 34. In the instant case the defendant’s

brief indicated he submitted the following proffer of the falsity of the victim’s prior

allegations against others:


                     1. The child, . . . , falsely reported that she was subjected
              to inappropriate sexual contact by [C.M.], III and [C.M.], IV.
              The child has admitted to a mental health professional that the
              reports were false claiming that she made the reports because
              she was confused by her mother. [D.H.H.R. Assessment dated
              3/23/03 at p. 2]. An investigation was conducted by the Ohio
              County Sheriffs office and by D.H.H.R. and found these reports
              to be unsubstantiated.

                     2. The child, . . . , falsely reported that she was subjected
              to inappropriate sexual contact by both [S.K.] and her husband,
              [P.K.], or that she dreamed of inappropriate sexual contact with
              [S.K.] and her husband, [P.K.]. The child has admitted to a
              mental health professional that the reports were false. An
              investigation by D.H.H.R. found the reports to be
              unsubstantiated. There are numerous reports by [the child’s
              mother] of dream sexual assaults including early reports by [the
              victim] that the sexual assaults by Jack [J.] were dreams.
              Moreover, the child has reported to [her mother] that she
              dreamed that she was sexually assaulted by Lt. [C.] during his
              interview of the child. [Taped interview of Jack [J.] by Lt. [C.],
              interviews of [the mother], [M. M], and [M. M.]].

                                              10

                    A. The Child and Adolescent Needs and
             Strengths and Comprehensive Multisystem
             Assessment dated 2/28/07 contains the following
             language:

                    “This placement was disrupted when [the
             alleged victim] began to fantasize that her foster
             parents were going to have sexual intercourse in
             front of her and then involve her in the act. [The
             alleged victim] also began to have sexual dreams
             where her foster mother was having sex with
             numerous men.” (P.3)

                    B. “Clear evidence of antisocial behavior
             including but not limited to lying, stealing,
             manipulating others, sexual aggression, violence
             towards people, property or animals.” [P. 11].

                     C. “[The alleged victim] has fantasized that
             her former foster parents were going to sexually
             abuse her. She most recently was having dreams
             that her foster mother was having sex with other
             men (like she witnessed her mother doing) and
             was going to also include [the alleged victim] in
             the act.” (P. 18).

             D. “Since [the alleged victim] has been in placement at
      Pomegrante, she disclosed that while living in the home of her
      biological mother, she sexually assaulted an infant, male cousin
      by inserting a coat hanger in his penis. This happened in her
      bedroom. When she couldn’t get the hanger out, the baby began
      crying and she yanked it out, put his diaper back on, and went
      downstairs.” (p.18).

      3. The Section II, Designated Individual Case Reviewer report dated
8/7/2007 contains the following language:

             A. “[The alleged victim] has fantasized that her former
      foster parents were going to sexually abuse her. She most
      recently was having dreams that her foster mother was having

                                     11

sex with other men (like she witnessed her mother doing) and
was going to also include [the alleged victim] in the act.” (p.
13).

             B. The child reports sexually oriented
       nightmares at the [K.] residence on pp. 18-19.

               C. “According to information obtained
       through this reviewer's interview with [S.K.], [the
       alleged victim] had been having some bizarre
       dreams, thoughts, and behaviors about two weeks
       prior to her removal from the [K.] home. [The
       alleged victim’s] bizarre behaviors allegedly
       started when Mr. and Mrs. [K.] were sitting next
       to each other on the couch in the living room with
       [the alleged victim] also being in the room with
       them. [The alleged victim] reportedly began to get
       very nervous and anxious that [Mr. and Mrs. K.]
       were going to have sex and make her
       watch/participate. Around the same time, [the
       alleged victim] began to report having dreams that
       involved [S.K.] having sex with numerous men.
       [The alleged victim] went to school one day and
       told school personnel that she had seen Mr. [K.]
       in his underwear. The school called [S.K.] regard
       to this. Sally adamantly denied that this could
       have happened as her husband is a long-distance
       truck driver and is only home on weekends. She
       was positive [the alleged victim] had never seen
       him dressed inappropriately.” (p. 21).

        4. The child, has reported that her cousin, . . . , inserted
a hair brush into her vagina. The report is memorialized in the
medical records of Dr. Romano for 7/18/01 with a report of “no
obvious evidence of genital trauma.” Further details of the
report provided by [relatives of the alleged victim]; report
mentioned in D.H.H.R. Assessment dated 3/23/03 at p. 2.

       5. The child, . . . , has falsely reported that she was
sexually abused by [John G.]. [The alleged victim] has admitted

                                12

            that the report was false. [D.H.H.R. report of September
            14,2009 at pages 1 & 5]. An initial recorded interview at
            Harmony House resulted in the alleged victim stating that the
            report was false. In a later unrecorded interview by Linda
            Reeves, the child reportedly claimed that the report was true.
            [J.G.] and an eyewitness both deny that the report is true. In an
            agreed upon in camera interview by the Court, [the alleged
            victim] stated that the report was true while the eyewitness
            denied the truth of the report.

                   6. The child, . . . , has falsely reported that she was
            sexually abused by various men on at least three occasions.
            [D.H.H.R. report of September 14, 2009 at pages 3 & 5].

                   7. The child, . . . , has falsely reported that she was
            sexually abused by [P.K.], a grandfather and a principal.
            [D.H.H.R. report of September 14, 2009 at page 4).

                   8. The child has reported that she saw her former foster
            sibling . . . naked. The child later denied that she saw [her
            former foster sibiling] naked or that she made the report.
            [February 9, 2009 report of Solutions Outpatient Services].

                    9. The alleged victim has reported that she saw [D.B.]
            naked. [S.K.’s notes on page 1]. The alleged victim has also
            reported that [D.B.] had intercourse with her. [S.K.]’s notes
            for Nov. 22, 2006; Pomegrante Report p. 9/33]. The report that
            [W.] and [D.B.] had sex with [the alleged victim] touched [sic]
            upon in the interview by Linda Reeves. The alleged victim
            denied that [D.B.] did anything to her except spanking her in
            that interview. [Hogan interview at pp. 10 & 12.].

                  10. The alleged victim has reported that she has had sex
            with her cousin . . . and was caught in the act. [Pomegrante
            Report p. 27/33].

(Emphasis added).




                                           13

              The above evidence submitted to the trial court shows that the victim alleged

sexual misconduct against: (1) C.M., III, and C.M., IV, which was found to be

unsubstantiated by a local sheriff and DHHR; (2) S. K. and P. K., which was found to be

unsubstantiated by DHHR; (3) a cousin, which was found to be medically unsubstantiated;

(4) social worker J.G., which was later retracted, then reaffirmed, then retracted, then

reaffirmed; (5) three unnamed men; (6) a foster sibling W.; (7) D.B.; and (8) a second cousin

In total, the defendant presented evidence that the alleged victim has accused at least twelve

different people of engaging in sexual misconduct with her.



       The majority opinion held that the defendant failed to prove that the twelve people did

not engage in sexual misconduct with the alleged victim. Such a finding is disturbing. The

defendant in this case was able to submit credible evidence, that was documented in DHHR

reports, that law enforcement and DHHR had investigated many of the allegations by the

alleged victim and found them unsubstantiated.



              To the extent that the defendant’s proffer was insufficient, the only way that

he could satisfy the majority’s interpretation of the “strong and substantial proof”

requirement would be to provide the trial court with judgments of acquittal of the other

persons accused of sexual misconduct by the alleged victim. This heightened standard is




                                             14

unconscionable and violated the defendant’s constitutional right of confrontation.3 I do not

make this assessment lightly. The Fourth Circuit reviewed this Court’s opinion in Quinn in

a habeas corpus proceeding. Although the Fourth Circuit affirmed Quinn, it did so by

expressly noting that it did “not address the broader issue of whether West Virginia’s

standard of strong and substantial proof of falsity is objectively reasonable in light of relevant

Supreme Court precedent.” Quinn v. Haynes, 234 F.3d 837, 847 (4th Cir. 2000). I submit

that the standard of “strong and substantial proof,” as interpreted in this case by the majority

opinion, is not objectively reasonable under the decisions of the United States Supreme

Court. The defendant in this case sought “to expose to the jury the facts from which [the]

jurors . . . could appropriately draw inferences relating to the reliability of the [victim].”

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986)

(internal quotations and citation omitted). See also Berger v. California, 393 U.S. 314, 315,

89 S. Ct. 540, 541, 21 L. Ed. 2d 508 (1969) (“[O]ne of the important objects of the right of

confrontation was to guarantee that the fact finder had an adequate opportunity to assess the

credibility of witnesses.”). However, because the trial court prohibited cross-examination

of the alleged victim concerning prior unfounded allegations of sexual misconduct by others,

“[t]he jury was essentially misled, by the empty gesture of cross-examination, to believe that

the defense attorney had been permitted to use all the tools at his disposal to expose


       3
        The unconscionability of this heightened standard is found in the fact that the
prosecutor did not bring charges against any of the other persons falsely accused by the
alleged victim–thus it was impossible for the defendant to submit judgments of acquittal.

                                               15

weaknesses in [the alleged victim’s] testimony.” Van Arsdall, 475 U.S. at 688, 106 S. Ct.

at 1440, 89 L. Ed. 2d 674.



              In the final analysis, I agree with the dissenting opinion in Abram v. Gerry, 672

F.3d 45(1st Cir. 2012):

              The specter of an adult, particularly one in a position of trust . . .,
       sexually abusing [a] minor [child] is enough to incense even the most
       equanimous person and to wish upon such a miscreant the full retributive
       weight of the law. But there lies the catch: the law. We live in an ordered
       society, and to keep it ordered for the benefit of the whole of society, we are
       bound to apply the law, not just to do what we believe the abominable person
       charged may justly deserve.

Abram, 672 F.3d at 53 (Torruella, J., dissenting). In view of the foregoing, I respectfully

dissent.




                                             16

