                                    ___________

                                    No. 95-3146
                                    ___________

James F. Shaw,                           *
                                         *
              Plaintiff-Appellant,       *
                                         *   Appeal from the United States
     v.                                  *   District Court for the
                                         *   District of South Dakota.
United States of America,                *
                                         *        [UNPUBLISHED]
              Defendant-Appellee.        *

                                    ___________

                     Submitted:     June 10, 1996

                         Filed:     August 1, 1996
                                    ___________

Before BOWMAN, LAY, and LOKEN, Circuit Judges.

                                    ___________

PER CURIAM.


     In 1986, James F. Shaw was convicted of seven counts of carnal
knowledge with his eleven-year-old foster daughter under 18 U.S.C. §§ 1153,
2032 (1982 & Supp. IV 1986).         This court affirmed his conviction.     See
United States v. Shaw, 824 F.2d 601 (8th Cir. 1987), cert. denied, 484 U.S.
1068 (1988).     Shaw sought to introduce testimony from several boys as to
their prior sexual activities with the girl.          This testimony was offered
under an exception to the federal rape-shield law that allowed evidence of
prior sexual activity of an alleged victim as an alternative explanation
for the victim's "injury."     See Fed. R. Evid. 412(b)(2)(A) (1986).        The
trial court excluded the testimony.      On direct appeal, this court rejected
Shaw's argument that the testimony should have been admitted, finding that
the condition of the girl's hymen--described as penetrated, stretched, or
widened--did not constitute an "injury" within the meaning of Fed. R. Evid.
412.1       Shaw, 824 F.2d at 605.   This court also found Shaw waived his
argument for the admission of the evidence as constitutionally required and
as an alternative explanation for the girl's sexual knowledge and venereal
disease.      Id. at 603 n.2, 606 n.6.2


        Shaw has now filed a 28 U.S.C. § 2255 motion seeking to set aside his
conviction contending his trial counsel was constitutionally deficient for
failing to offer the testimony on the basis of his constitutional right to
defend himself.      As we have discussed in note 2, supra, we find Shaw did
raise the claim during trial and the trial court ruled on it, but we
nonetheless review his claim that the evidence should have been admitted.


        Shaw argues this testimony was constitutionally required to be
admitted as an alternative explanation for the condition of the girl's
hymen, the girl's sexual knowledge, and the girl's venereal disease.     The
district court initially rejected Shaw's claim for



        1
      Fed. R. Evid. 412(b)(2)(A) (1986) provided for the admission
of "evidence of . . . past sexual behavior with persons other than
the accused, offered by the accused upon the issue of whether the
accused was or was not, with respect to the alleged victim, the
source of semen or injury[.]"     In 1994, Fed. R. Evid. 412 was
amended to provide that such evidence may be admitted to show "a
person other than the accused was the source of semen, injury or
other physical evidence[.]"     Fed. R. Evid. 412(b)(1)(A) (1995)
(emphasis added). See also United States v. Begay, 937 F.2d 515,
523 n.10 (10th Cir. 1991).
             2
         The magistrate judge quotes from the original trial
transcript showing that Shaw's counsel did raise the constitutional
issue at the trial and on appeal. He did not, however, raise the
constitutional issue under Rule 412 in any pre-trial written motion
as required by Fed. R. Evid. 412(c) (1986). Nonetheless, the trial
judge rejected the evidence on its merits. Under the circumstances
it is difficult to find that Shaw's counsel was deficient in
failing to raise the constitutional issue or that there existed any
prejudice even if he did not timely raise it. Nonetheless, since
this court did not review this issue on direct appeal because it
found that Shaw's counsel waived the issue, we feel Shaw and his
counsel are entitled to a review on the merits of claim under the
petition now filed. As we discuss, we conclude that this evidence
was highly speculative and not relevant. Under the circumstances,
the trial court's rejection of it was not in error.

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relief, but this court remanded for an evidentiary hearing.   Shaw v. United
States, 24 F.3d 1040, 1043 (8th Cir. 1994).       Following the hearing, in
which several of the boys gave testimony, both the magistrate judge and the
district court rejected Shaw's claim for relief.       Shaw appeals; we now
affirm the dismissal of his § 2255 petition.


        The testimony given at the § 2255 evidentiary hearing shows that, at
best, the boys' testimony as to their alleged sexual acts with the girl
would have been minimally relevant and highly speculative at the trial.
Almost all of the alleged sexual acts concerning these boys occurred two
to three years before the charged conduct against Shaw.     None of the boys
testified to full or repeated penetration of the girl's vagina.      None of
the boys testified as to ejaculating during their alleged sexual acts with
the girl.    None of the boys had venereal disease at the time of the alleged
acts.    Thus, this testimony could not have explained the condition of the
girl's hymen, her venereal disease, or the full extent of her sexual
knowledge.    Nor would the existence of sexual activities with these boys
provide any basis, under the facts of this case, for concluding that the
girl was confused or fabricated her testimony about the ongoing sexual
abuse by Shaw.     Under these circumstances, we think the district court
properly found that this evidence was not relevant to the case, and thus
Shaw had no constitutional right to introduce the boys' testimony.


        Furthermore, whatever relevance the boys' testimony may have had is
outweighed by the legitimate governmental interests in avoiding the
confusion, prejudice, and harassment likely to result from introduction of
the boys' testimony.    See Michigan v. Lucas, 500 U.S. 145, 149 (1991); see
also Rock v. Arkansas, 483 U.S. 44, 61 (1987); Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986); United States v. Bear Stops, 997 F.2d 451, 454-58
(8th Cir. 1993).    The girl strongly disputes the boys' testimony about the
alleged sexual acts, and the government has attacked the boys' credibility.




                                     -3-
One of the boys who testified at the § 2255 hearing testified that Shaw
asked him to fabricate allegations about the girl.      In Bear Stops, this
court found that "uncontroverted" evidence about an incident of sexual
abuse of the victim, contemporaneous with the alleged abuse in that case,
was constitutionally required to be admitted because it was highly relevant
as an alternative explanation for the victim's "behavioral manifestations
of a sexually abused child" and for the victim's bloody underwear.   Id. at
457.   By contrast, the evidence in this case is minimally relevant and
controverted, and thus we conclude the potential for confusion, prejudice,
and harassment at the trial substantially outweighs Shaw's rights to
present the evidence.


       Finally, the boys' testimony provides no basis for believing that the
outcome of the case would have been different if such testimony had been
presented to the jury.   The magistrate judge found the boys' testimony was
not credible.   As we have discussed, the boys' testimony, even if believed,
was of little probative value on the key issues in the case.   Furthermore,
the boy who testified that Shaw asked him to fabricate allegations also
denied engaging in any sexual acts with the girl and stated that he saw
Shaw having intercourse with the girl.       Under these circumstances, we
cannot find a reasonable probability that the result of the proceeding
would have been different if the boys' testimony had been admitted, nor is
our confidence in the outcome of the trial undermined by the proffered
testimony.


       For the foregoing reasons, the judgment is AFFIRMED.


       A true copy.


             Attest:


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




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