         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: __________

Filing Date: August 21, 2014

Docket No. 33,592

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

VINCENT MONTOYA,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Monica M. Zamora, District Judge

Jorge A. Alvarado, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Jacqueline R. Medina, Assistant Attorney General
Santa Fe, NM

for Respondent

                                        OPINION

BOSSON, Justice.

{1}     Once again, we are tasked with unraveling the confusing interplay between an
accused’s Sixth Amendment right “to be confronted with the witnesses against him,” and our
rape shield law designed to protect a victim’s privacy. U.S. Const. amend. VI, NMSA 1978,
Section 30-9-16 (1993). Here, the alleged victim, the accused’s girlfriend, was the sole
material witness against him for the crime of kidnapping with the intent to commit a sexual
offense. On cross-examination, the accused wanted to ask her particular questions about their
sexual relationship to demonstrate a certain pattern of conduct and understanding between

                                             1
the two and thereby refute the accusation that he intended to have sex with her without her
consent. The State objected to the line of questioning and the district court agreed, relying
on New Mexico’s rape shield law.

{2}    Because we determine that the accused was denied an opportunity to fully confront
his accuser and because this error could have affected the jury’s verdict, we reverse and
remand for a new trial. In so doing, we again examine the competing policies between our
rape shield law and the immutable right of the accused to confront his or her accuser.

BACKGROUND

{3}     On February 12, 2012, a jury convicted Defendant Vincent Montoya of kidnapping
with the intent to inflict a sexual offense upon his girlfriend (Victim). Defendant was also
convicted of two other crimes not relevant to this appeal. The factual underpinnings leading
to the incident are not in dispute.

{4}    On Super Bowl Sunday in 2007, Victim and Defendant were at Defendant’s
grandmother’s home, where Defendant lived. At the time of the incident, Defendant was
seventeen and Victim was fifteen. The two had been in a relationship for two years.
Defendant and Victim began arguing after Defendant received a phone call from another girl.

{5}     During the argument, Defendant indicated to Victim that he wanted to have sexual
intercourse with her, and at some point, the two ended up in Defendant’s bedroom on his
bed. On the bed, Defendant got on top of Victim and tried to remove her pants, breaking the
zipper while doing so. Victim did not want to engage in intercourse with Defendant and told
him “no” more than once on this occasion. Victim pushed and kicked Defendant until he
stopped, ending his sexual advances. Victim testified that Defendant would have been able
to force himself upon her if he had wanted to.

{6}      The two continued to argue. Victim kicked Defendant again, and after Defendant got
off of Victim, he bit her on her upper thigh. Victim left the bedroom, despite Defendant’s
wish that she stay. In the living room, Defendant pushed Victim over a table, causing her to
fall, hit her head, and hurt her back. Victim testified that she sustained a bruise on her leg
from the bite, as well as a hurt back, a bump on her head and scratches from being pushed
over the table. The event ended when Victim’s parents arrived to pick her up, realized
something was wrong, and called the police.

{7}     Of importance to this appeal, a grand jury indicted Defendant on the charge of
kidnapping with the intent to inflict a sexual offense, contrary to NMSA 1978, Section 30-4-
1(A)(4) (2003) (“Kidnapping is the unlawful taking, restraining, transporting or confining
of a person, by force, intimidation or deception, with intent . . . to inflict . . . a sexual offense
on the victim.” (emphasis added)). Defendant was also indicted for attempted criminal
sexual penetration, contrary to NMSA 1978, Sections 30-28-1 (1963) (“Attempt to commit
a felony consists of an overt act in furtherance of and with intent to commit a felony and

                                                 2
tending but failing to effect its commission.” (emphasis added)) and 30-9-11(A), (E) (2003,
amended 2009)1 (“Criminal sexual penetration is the unlawful and intentional causing of a
person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse . . . . Criminal
sexual penetration in the third degree consists of all criminal sexual penetration perpetrated
through the use of force or coercion.”).

{8}     The pivotal issue in the case centered on Defendant’s intent, specifically whether
Defendant, in restraining Victim, intended to commit a sexual offense against her (criminal
sexual penetration) or whether he merely intended to have consensual intercourse with his
girlfriend. Defendant acknowledged his desire for consensual sex but denied any intent to
have intercourse with Victim against her will. Thus, when the two went into the bedroom
and Defendant straddled Victim on the bed, Defendant insisted that he did not have the
requisite specific intent to commit a sexual offense against her.

{9}     Before trial, Defendant filed a motion under Rule 11-412 NMRA2, New Mexico’s
rape shield rule, to elicit evidence directly from Victim by way of cross-examination
regarding their prior sexual conduct, specifically, their previous acts of engaging in
intercourse after an argument as a method to resolve disputes, something he called “make-up
sex.” In his motion and at the following hearing, Defendant explained his reasoning. He
wanted to ask Victim whether the two of them had a long-standing sexual relationship and
whether she and Defendant had engaged in sexual relations “after an argument in order to
make up.” As an offer of proof, Defendant represented that Victim would testify that “she
believed Defendant was trying to have ‘make-up sex’ with her and that they had engaged in
make-up sex in the past.”

{10} The district court held a pre-trial hearing, which functioned as an in camera hearing
pursuant to Rule 11-412(C)(2). At the end of the hearing, the court denied Defendant’s
motion, finding that “[t]he alleged victim’s past sexual conduct is inflammatory and
prejudicial in nature and is not outweighed by its probative value.” Significantly, the court

        1
         The State erroneously cited NMSA 1978, Section 30-9-1(E) (1963) (“Enticement
of a child”) as the statute under which it was charging Defendant with criminal sexual
penetration. Section 30-9-1 does not have a subsection E. When the indictment was filed, the
correct statutory section for third-degree criminal sexual penetration was Section 30-9-11(E).
        2
         Rule 11-413 NMRA was renumbered in 2012 without “chang[ing] the rule in any
substantive way,” and is now Rule 11-412. See Committee Commentary Rule 11-412 (“The
rule, previously numbered Rule 11-413 . . . , was renumbered in 2012 as Rule 11-412 . . . ,
and Rule 11-412 . . . was renumbered as Rule 11-413. . . . The renumbering was adopted
because the subject matter of renumbered Rule 11-412 is now consistent with Federal Rule
412, although the rule is substantively different.”). For purposes of this opinion, all
references to this rule will indicate Rule 11-412, despite all record citations and pleadings
in this case referring to Rule 11-413.

                                                3
recognized in its order that “Defendant’s confrontation rights are implicated by the material
the defense seeks to introduce but that material may be elicited by other legally proper means
than through the alleged victim.”

{11} At trial, Victim provided the critical testimony in support of the State’s case. Victim
had a difficult time recalling the details of the incident between her and Defendant. During
cross-examination, Victim testified that she and Defendant had been in a relationship for two
years, though pursuant to the district court’s order, she did not expressly say it was a sexual
relationship. On further cross-examination, Victim affirmatively answered defense counsel’s
questions, acknowledging that (1) if Defendant had wanted to he could have overpowered
her by his size and strength to force her to have sexual intercourse with him, (2) she felt that
Defendant was trying to get her to consent to let him have sexual intercourse with her and
that she was not “terrified he was going to penetrate” her, and (3) she did not feel that
Defendant would have sexual intercourse with her unless she consented.

{12} Defendant elected not to testify at trial and provided no witnesses to testify on his
behalf. Ultimately, the jury acquitted Defendant of attempted criminal sexual penetration,
but convicted him of kidnapping with the intent to inflict a sexual offense and two other
crimes not relevant to this appeal. Charged as a youthful offender, Defendant was sentenced
as an adult to a term of nearly eleven years in prison, seven of which were suspended on the
condition that Defendant complete five years of supervised probation. See NMSA 1978, §
32A-2-20(B)(1) (2009) (giving the court the authority to impose an adult sentence on a
youthful offender if the court finds the child is not amenable to treatment). On appeal, the
Court of Appeals affirmed Defendant’s conviction. State v. Montoya, 2013-NMCA-076, ¶¶
1, 39, 306 P.3d 470.

STANDARD OF REVIEW

{13} We must clarify the proper standard of review for analyzing cases implicating both
the rape shield rule and the Confrontation Clause. In reviewing this case below, the Court
of Appeals noted that “[o]ur Supreme Court has sent confusing signals regarding the
standard of review for cases involving both the rape shield rule and the Confrontation
Clause,” sometimes appearing to vacillate between de novo review of the constitutional
issues and the more deferential abuse of discretion under the rape shield rule. Montoya,
2013-NMCA-076, ¶ 9. That may be, but we attempt to clarify.

{14} As we will highlight in this opinion, when a defendant makes a claim that the rape
shield law bars evidence implicating his or her confrontation rights, a district court must first
identify a theory of relevance implicating a defendant’s constitutional right to confrontation
and then weigh whether evidence elicited under that theory would be more prejudicial than
probative. See United States v. Powell, 226 F.3d 1181, 1198 (10th Cir. 2000) (“Evidence
adduced by cross-examination concerning prior sexual intercourse may be required to be
admitted by Confrontation Clause rights where relevant and probative on a central issue of
sexual offense charges.”).

                                               4
{15} It is well settled that our appellate courts generally review evidentiary matters for an
abuse of discretion. State v. Woodward, 1995-NMSC-074, ¶ 6, 121 N.M. 1, 908 P.2d 231
(“The standard of review of evidentiary issues is well established. On review we defer to the
trial judge’s decision to admit or exclude evidence and we will not reverse absent a clear
abuse of discretion.”) (internal quotation marks and citation omitted), reversed on other
grounds by Woodward v. Williams, 263 F.3d 1135, 1143 (2001). This standard of review,
however, is different when a defendant’s evidentiary challenge is based on constitutional
rights to confrontation. The Tenth Circuit articulated an appropriate approach in a case
dealing with the admission of prior sexual conduct evidence when it declared that it
“review[s] challenges to rulings excluding evidence proffered by the defense de novo where
the objections are based on Sixth Amendment confrontation rights.” Powell, 226 F.3d at
1198.

{16} This is consistent with our own view because whether a constitutional right was
violated is a question of law that does not require deference to a trial court’s findings of fact.
See State v. Attaway, 1994-NMSC-011, ¶ 10, 117 N.M. 141, 870 P.2d 103 (“[A]n appellate
court is reluctant to give the trier of fact’s conclusions presumptive force and, in so doing,
strip . . . [a]n appellate court of its primary function as an expositor of law.” (second
alteration and omission in original) (internal quotation marks and citation omitted)).
Therefore, “[q]uestions of admissibility under the Confrontation Clause are questions of law,
which we review de novo.” State v. Lopez, 2013-NMSC-047, ¶ 7, 314 P.3d 236 (internal
quotation marks and citation omitted).

DISCUSSION

{17} New Mexico enacted its rape shield law in 1975. See 1975 N.M. Laws, ch. 109, §7;
State v. Johnson, 1997-NMSC-036, ¶ 18, 123 N.M. 640, 944 P.2d 869. Our rape shield
statute provides:

        As a matter of substantive right, in prosecutions pursuant to the provisions
        of Sections 30-9-11 through 30-9-15 NMSA 1978, evidence of the victim’s
        past sexual conduct, opinion evidence of the victim’s past sexual conduct or
        of reputation for past sexual conduct, shall not be admitted unless, and only
        to the extent that the court finds that, the evidence is material to the case and
        that its inflammatory or prejudicial nature does not outweigh its probative
        value.

Section 30-9-16(A).

{18} This Court adopted a similar rule of evidence, Rule 11-412, entitled “Sex Crimes;
testimony; limitations; in camera hearing.” Rule 11-412(A) provides that “[t]he following
evidence is not admissible in a civil or criminal proceeding involving alleged sexual
misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior,
or (2) evidence offered to prove a victim’s sexual predisposition.” There are, however,

                                                5
exceptions. Rule 11-412(B) provides that “[t]he court may admit evidence of the victim’s
past sexual conduct that is material and relevant to the case when the inflammatory or
prejudicial nature does not outweigh its probative value.” (Emphasis added.) This rule gives
district courts wide latitude to determine whether sexual-conduct evidence is relevant and
not unduly prejudicial. See Haviva A. Graeber, Evidence Law—Striking the Right Balance
in New Mexico’s Rape Shield Law—State v. Johnson, 28 N.M. L. Rev. 611, 615 (1998)
(recognizing that New Mexico’s rape shield laws are among the “least restrictive” of the
various rape shield laws in other states).

{19} As we have seen before in our jurisprudence, conflicts can and often do arise when
the State’s interest in protecting witnesses from unwarranted intrusions into their prior sexual
history conflicts with an accused’s right to confront his or her accuser and present a full and
fair defense. See, e.g., State v. Stephen F., 2008-NMSC-037, ¶¶ 1, 6, 144 N.M. 360, 188 P.3d
84 (holding that a defendant had the constitutional right to cross-examine the victim
regarding a prior sexual incident to establish the victim’s motive to fabricate the present
charges against him). As we have acknowledged before, “[i]f application of the rape shield
law or rule would conflict with the accused’s confrontation right, if it operates to preclude
the defendant from presenting a full and fair defense, the statute and rule must yield.”
Johnson, 1997-NMSC-036, ¶ 24. “[E]vidence of prior sexual conduct must be admitted if
a defendant shows that evidence implicates his or her constitutional right of confrontation.”
Id. ¶ 22.

{20} In this case we must determine whether the district court denied Defendant an
opportunity to present a full and fair defense when it restricted the testimony he could elicit
from Victim regarding their long-standing sexual relationship and history of engaging in
sexual intercourse as a method of resolving disputes—“make-up sex.” To do this, we
examine Defendant’s Confrontation Clause claim, because “a defendant’s constitutional
right of confrontation [serves] as a basis for determining relevance and weighing probative
value, and [because] the admissibility of evidence of prior sexual conduct [may] show bias,
motive to fabricate or for other purposes consistent with the constitutional right.” Id. ¶ 9.

Confrontation Clause

{21} “The Confrontation Clause of the Sixth Amendment guarantees all criminal
defendants, state and federal, the right ‘to be confronted with the witnesses against’ them.”
State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 6, 136 N.M. 309, 98 P.3d 699 (quoting U.S.
Const. amend. VI). The Fourteenth Amendment applies the Sixth Amendment to the states.
State v. Lopez, 2000-NMSC-003, ¶ 14, 128 N.M. 410, 993 P.2d 727. “The most important
element of the right of confrontation is the right of cross-examination.” State v. Sanders,
1994-NMSC-043, ¶ 22, 117 N.M. 452, 872 P.2d 870. “Cross-examination is the principal
means by which the believability of a witness and the truth of his testimony are tested.”
Davis v. Alaska, 415 U.S. 308, 316 (1974). Moreover, “[t]he rights to confront and cross-
examine witnesses . . . have long been recognized as essential to due process.” Chambers
v. Mississippi, 410 U.S. 284, 294 (1973).

                                               6
{22} We recognize that the right to cross-examine “is not absolute.” Sanders, 1994-
NMSC-043, ¶ 23. “However, a court’s decision to restrict a defendant’s ability to confront
a witness, even when based on legitimate state interests, calls into question the ultimate
integrity of the fact-finding process and requires that the competing interest be closely
examined.” Stephen F., 2008-NMSC-037, ¶ 6 (internal quotation marks and citation
omitted). Finally, “[a] defendant’s right of confrontation—with its protection of the right to
cross-examine, test credibility, detect bias, and otherwise challenge an opposing version of
facts—is a critical limitation on the trial court’s discretion to exclude evidence a defendant
wishes to admit.” Johnson, 1997-NMSC-036, ¶ 23 (emphasis added).

{23} In Johnson, this Court conducted an extensive exploration of the history and purpose
of rape shield laws in New Mexico and across the country. See Johnson, 1997-NMSC-036,
¶¶ 11-21. In that case, the district court refused to admit evidence regarding the victims’
prior sexual conduct as prostitutes. Id. ¶ 1. We examined whether this restriction violated the
defendant’s confrontation right to present his theory of the case; namely, the victims had a
motive to fabricate the rape allegations which their prior experience as prostitutes somehow
demonstrated. See id. ¶¶ 1, 8, 22.

{24} We held in Johnson that the defendant failed to make a sufficiently specific case as
to any alleged nexus between the victims’ prior status as prostitutes and a purported motive
to fabricate, and therefore we concluded that the proffered evidence of prostitution was not
relevant. See id. ¶¶ 29, 32-33, 40. In doing so, we recognized the vital role the district court
plays in “preserving the delicate balance” between protecting a defendant’s constitutional
right to confrontation and the legislature’s goals in enacting the rape shield law. See id. ¶ 25
(internal quotation marks omitted). We stated that “the court must consider probative value
not only in order to identify a theory of relevance, but also in order to evaluate the
consequences of either admitting the evidence or excluding it.” Id.

{25} Johnson was ultimately about the district court’s role in assessing the relevance of
an accused’s proffered evidence. Significantly, in Johnson we recognized that “[n]othing in
our statute or rule . . . limits the reasons a court might find evidence material and of
sufficient probative value to justify admission.” Id. ¶ 19. “[O]ur statute, rule, and cases rely
on the trial court judge to identify theories of relevance as well as to exercise discretion,
balance prejudicial effect against probative value, and thus determine admissibility on a case
by case basis.” Id. ¶ 20.

{26} In Johnson, we further suggested a nonexclusive set of guidelines to assist the district
court in determining the relevancy and admissibility of prior-sexual-conduct evidence
implicating a defendant’s constitutional rights. See id. ¶¶ 27-28.3 We stated that “a showing

       3
        The five-factor test asks the following:

       (1) whether there is a clear showing that the complainant committed the prior

                                               7
sufficient under the five-pronged . . . test establishes a constitutional right to present
evidence otherwise excluded by our statute.” Id. ¶ 28.

{27} We emphasize again that these factors are nothing more than a “possible framework”
for assessing relevance. See id. ¶ 28 (stating that the factors were “not intend[ed] to limit the
trial courts in the exercise of discretion under the rule and statute, but rather to suggest a
possible framework for exercising that discretion”); Stephen F., 2008-NMSC-037, ¶ 8
(noting that the five-factor test was intended only to provide guidelines, not rigid
requirements). Although some subsequent judicial reference to those guidelines might
suggest that they should always be applied in cases assessing relevance of past sexual
conduct, see id. ¶¶ 10-25, we have never intended to encourage a rigid, mechanical use of
these factors.

{28} Unlike the Confrontation Clause, rape shield laws are not constitutional in nature.
See, e.g., Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“Whether rooted directly in the . . .
Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.” (internal quotation
marks and citations omitted)). Rather, rape shield protections arise in the context of
evidentiary rules regarding relevance. Indeed, New Mexico’s rape shield rule is in Article
4 of New Mexico’s evidentiary rules, which deal with “Relevancy and Its Limits.” Rule 11-
401 NMRA (“Evidence is relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence, and . . . the fact is of consequence in
determining the action.”).

{29} When dealing with the competing interests presented by the rape shield law and the
Confrontation Clause, relevance—defendant’s particular theory of relevance—is of
paramount importance. Therefore, the district court’s task is to determine whether a
defendant has presented sufficient facts to support a theory of relevance implicating his
constitutional right to confrontation. Stephen F., 2008-NMSC-037, ¶ 7 (“Under our statute
and rule of evidence, ‘a defendant must show sufficient facts to support a particular theory
of relevance’ to enable the trial court to competently assess the constitutional significance
of that theory.” (quoting Johnson, 1997-NMSC-036, ¶ 32)). If a defendant makes such a
showing, the court must then weigh the probative value of that evidence against the danger
of unfair prejudice to the victim. See Rule 11-412(B).

        acts; (2) whether the circumstances of the prior acts closely resemble those
        of the present case; (3) whether the prior acts are clearly relevant to a
        material issue, such as identity, intent, or bias; (4) whether the evidence is
        necessary to the defendant’s case; [and] (5) whether the probative value of
        the evidence outweighs its prejudicial effect.

Id. ¶ 27.

                                               8
Defendant Presented a Theory of Relevance Implicating His Constitutional Right to
Confrontation

{30} Defendant argued that Victim’s testimony regarding their long-standing sexual
relationship and history of engaging in “make-up sex” was singularly relevant to his defense:
that he never intended to assault her sexually (without her consent) but was only pursuing
consensual “make-up sex” as they had done after arguments in the past. The record indicates
explicitly that no one, including Victim, disputed their sexual relationship. The jury,
however, was not made aware of their prior sexual relationship, at least not explicitly.
Defendant contends that because of the district court’s evidentiary restrictions jurors could
have believed “this was the first and only sexual encounter between [Defendant and
Victim].”

{31}    In his pretrial motion to admit the sexual conduct evidence, Defendant argued:

        The alleged victim’s sexual conduct is relevant because such evidence
        implicates Defendant’s constitutional right to present a defense to the specific
        intent crimes of kidnapping and attempted criminal sexual penetration. It
        would be to enable Defendant to present evidence that his intent was to have
        consensual sexual relations with his long-time girlfriend, not to have sex with
        her against her will.

In his motion, Defendant further argued, “There is no other evidence available to Defendant
that so meaningfully goes to the issue of specific intent. Intent is a difficult thing to prove,
but conversely, a difficult thing to deny without looking at the big picture.”

{32} Ironically, the district court agreed with Defendant that his proffered evidence was
relevant and implicated his confrontation rights. The judge stated, “I agree with Defendant
that he is entitled to a right to confrontation and to present his case, and particularly . . . the
jury needs to know about this sexual relationship.” Nevertheless, the district court excluded
the evidence by reasoning that “there[ are] other means this can be brought in through, it
doesn’t have to be . . . through this witness.”

{33} The district court did not elaborate on the other avenues available for Defendant to
elicit this evidence, and we are skeptical that any other lawful means existed. For example,
the State insisted that Defendant could take the stand and testify as to his lack of criminal
intent, a suggestion the district court neither endorsed nor rejected. At trial, however,
Defendant chose to remain silent and not to testify, consistent with his constitutional right
against compelled self-incrimination. See U.S. Const. amend. V (“No person shall . . . be
compelled in any criminal case to be a witness against himself.”); N.M. Const. art. II, § 15
(“No person shall be compelled to testify against himself in a criminal proceeding.”).
Defendant cannot be compelled to choose one constitutional right over another. See State v.
Brown, 2006-NMSC-023, ¶ 9, 139 N.M. 466, 134 P.3d 753 (“[I]t is well settled that forcing
a criminal defendant to surrender one constitutional right in order to assert another is

                                                9
intolerable.” (internal quotation marks and citation omitted)).

{34} Also relevant to our consideration, no other witnesses appeared to testify in support
of Defendant’s lack of criminal intent, making Defendant’s requested cross-examination not
cumulative but seemingly vital to his defense. Apparently, there was no one else, aside from
Defendant and Victim, who could testify about the intimate details of their relationship—a
conclusion supported by common sense if nothing else.

{35} For all these reasons, we agree with the district court that Defendant’s line of inquiry
on cross-examination was relevant to a full and fair presentation of his legal defense—a lack
of specific intent to sexually assault Victim. We are not persuaded, at least not on this record,
that other lawful avenues were available for Defendant to present this defense without the
requested cross-examination. What follows under our rule is a judicial balancing of the
probative value of the evidence against the risk of unfair prejudice, a subject to which we
will turn momentarily. But first, we address an additional analysis, one expressed by the
Court of Appeals but not the district court, as to why Defendant’s line of inquiry was not
relevant.

{36} In concluding that Defendant’s constitutional confrontation rights were not
implicated, our Court of Appeals focused on Defendant’s concession that he was not trying
to impeach Victim by challenging her bias, lack of credibility, or truthfulness. See Montoya,
2013-NMCA-076, ¶¶ 23-26. Defendant conceded that he was not attacking Victim; he was
not trying to make Victim out “to be a liar, or biased, or in any way a bad person or a bad
witness.” Instead, Defendant wanted Victim’s testimony so that he could “challenge the
State’s version of the facts,” not the Victim’s, that he restrained her with the intent to
sexually assault her. The Court of Appeals found this distinction meaningful.

{37} Defendant uses this language to describe his purpose—to “challenge the State’s
version of the facts”—precisely because in Johnson we stated that “[a] defendant’s right of
confrontation—with its protection of the right to cross-examine, test credibility, detect bias,
and otherwise challenge an opposing version of facts—is a critical limitation on the trial
court’s discretion to exclude evidence a defendant wishes to admit.” Johnson, 1997-NMSC-
036, ¶ 23 (emphasis added). In other words, we indicated in Johnson that a defendant’s right
of confrontation is not limited to bias or other challenges to the witness’s credibility.

{38} The Court of Appeals found this argument unpersuasive, concluding that “[u]nder
Defendant’s interpretation [of Johnson], this language would turn any limitation on cross-
examination—regardless of its relation to bias, credibility, and motive to lie—into a
violation of the Confrontation Clause.” Montoya, 2013-NMCA-076, ¶ 24. We disagree.

{39} Although confrontation of a witness often includes an underlying challenge to the
credibility or reliability of testimony, we have never limited the constitutional right to
confrontation to the subject of credibility. See Johnson, 1997-NMSC-036, ¶ 9 (noting “other
purposes” for which confrontation would be necessary). “For two centuries, common law

                                               10
judges and lawyers have regarded the opportunity of cross-examination as an essential
safeguard of the accuracy and completeness of testimony.” Kenneth S. Broun, 1 McCormick
on Evidence, § 19 (7th ed. 2013) (emphasis added). See also United States v. Caudle, 606
F.2d 451, 457 (4th Cir. 1979) (“It may not be an exaggeration to claim . . . that
cross-examination is beyond any doubt the greatest legal engine ever invented for the
discovery of truth. And, its efficacy in testing the accuracy and completeness of testimony
is so well understood that the right of cross-examination is one of the safeguards essential
to a fair trial.” (internal quotation marks and citations omitted)). Cross-examination serves
to test the completeness as well as the accuracy of testimony, something Defendant wanted
to do by asking Victim about historical facts that could lead to a more complete explanation
of why he acted the way he did, or at least a different explanation from that suggested by the
State.

{40} Under the particular facts of this case, the State appears to use the rape shield law not
so much to protect the Victim, but to protect its theory of the case from meaningful
challenge. Because the district court excluded Defendant’s proffered evidence, Victim’s
testimony provided the jury with an incomplete version of their relationship, something that
bolstered the State’s case. The rape shield law should not serve to protect the prosecution
and its characterization of a case, especially when, as we will discuss, concerns regarding
Victim’s embarrassment and harassment are minimal.

{41} We emphasize that we are not focused on mere propensity evidence. For example,
Defendant’s theory of relevance would be unpersuasive if he were to argue that because
Victim had consented in the past, she likely consented on this occasion, or even that
Defendant would somehow be entitled to presume her consent based on past conduct.
Defendant does not argue that because of “make-up sex” in that past, Victim must have
intended consensual “make-up sex” on this occasion. Defendant’s theory goes not to
Victim’s propensity or her state of mind; it goes solely to his own thinking (specific intent)
in light of an alleged pattern of conduct and understanding between the two parties in the
context of allegedly similar circumstances. Defendant was free to point out that once he
realized that the facts and circumstances were not similar to a pattern of “make-up sex,” his
sexual advances ceased. We also note that Victim was the State’s key witness and the only
witness who could provide the testimony necessary for Defendant’s theory of the case,
making this specific testimony all the more important. See United States v. Mizell, 88 F.3d
288, 293 (5th Cir. 1996) (“This right [of cross-examination] is particularly important when
the witness is critical to the prosecution’s case.”).

The Inflammatory or Prejudicial Nature of Defendant’s Proffered Evidence Does Not
Outweigh Its Probative Value

{42} Concluding that Defendant presented an adequate theory of relevance to support
admission of his proffered evidence, as did the district court, we must now examine whether
the district court failed to accord the proper weight to Defendant’s confrontation rights when
it excluded the evidence. See Stephen F., 2008-NMSC-037, ¶ 28 (“In this case, the State’s

                                             11
interest in applying the rape shield statute to protect [Victim’s] privacy, while important,
is outweighed by [Defendant’s] right of confrontation under the Sixth Amendment.”). In
conducting this balancing test, we reflect on the purpose behind rape shield laws.
Traditionally, “[e]vidence of previous sexual conduct was deemed relevant at common law
on the issue of whether the rape complainant had consented to sexual relations on the
occasion in question—a complete defense, if established, to a charge of forcible rape.”
Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for
the Second Decade, 70 Minn. L. Rev. 763, 766 (1986) (footnotes omitted). Additionally, at
common law, some courts admitted “evidence of unchastity . . . to impeach a complainant’s
credibility on the theory that ‘promiscuity imports dishonesty.’” Id. However, this “use of
the complainant’s prior sexual conduct, pursuant to various theories of relevance, appeared
to have deterred victims of sexual assault from making formal complaints.” Johnson, 1997-
NMSC-036, ¶ 11. To encourage victims to report incidents of sexual assault, states enacted
rape shield laws to protect victims from unnecessary intrusions into their past sexual history,
because states recognized that such evidence is usually only marginally relevant. See id. ¶
12.

{43} These underlying concerns targeted by rape shield laws—concerns which this Court
fully recognizes—do not appear to be prominent in this case. As we have previously noted,
Defendant was not seeking the admission of his proffered evidence to prove that because
Victim had consented to intercourse with him in the past, she must have consented again.
Defendant acknowledges that on this particular occasion Victim did not consent and
expressed her displeasure in forceful terms. Additionally, Defendant did not seek to delve
unduly into the details of their sexual encounters, embarrass or harass Victim, elicit
testimony regarding Victim’s sexual conduct with others, or discredit her character.
Defendant sought Victim’s testimony solely to establish a pattern of conduct between the
two of them in order to present a complete defense and exculpatory evidence. As always, the
district court was free to manage the ebb and flow of any testimony to prevent abuse.

{44} This case resembles another recent opinion in which this Court dealt with the
interplay between the Confrontation Clause and the rape shield law. In Stephen F., we
addressed whether the exclusion of evidence regarding the victim’s previous sexual relations
with another person impinged on the defendant’s constitutional right to confront the
witnesses against him and his right to develop his theory of the case. Stephen F., 2008-
NMSC-037, ¶¶ 1, 3. The defendant’s sole theory was that the victim had consented to their
intercourse, only later to fabricate a rape allegation, because she feared punishment from her
parents who had punished her previously when she had sexual relations with another person.
Id. ¶¶ 3, 24. In order to establish the victim’s motive to fabricate the present allegations of
rape, the defendant wanted to cross-examine the victim about this prior incident of sexual
intercourse and subsequent punishment, as well as elicit testimony from the victim’s parents
regarding the consequences of her prior sexual conduct. Id. We held that the refusal to allow
the defendant to question the victim about facts which arguably could present a motive to
lie “infringed on his right to effective cross-examination.” Id. ¶ 22.

                                              12
{45} Like Stephen F., where we recognized that the only means for the defendant to
present a complete defense was to question the victim about her prior sexual conduct, the
only available means for Defendant to present his theory of defense was to ask Victim
specific questions about their longstanding sexual relationship and history of engaging in
“make-up sex.” Moreover, in Stephen F. the victim was likely afraid of recounting her prior
sexual conduct on the stand, due to her fear of punishment from her parents. Here, on the
other hand, Victim appeared willing and unfazed about testifying about her sexual conduct
with Defendant. In fact, defense counsel alerted the district court that when asked if she and
Defendant had engaged in “make-up sex,” Victim “laughed and said, ‘all the time.’”

{46} Finally, the State argues, and the Court of Appeals agreed, that Defendant’s proffered
evidence would be more prejudicial than probative because it was merely cumulative of the
other testimony Defendant elicited from Victim. Montoya, 2013-NMCA-076, ¶¶ 31-32. We
recognize that Victim did testify that she and Defendant had an ongoing relationship, that
she felt that Defendant had the strength and ability to force her to have sexual intercourse
with him, that she was not terrified that Defendant was going to “penetrate” her, and that she
believed Defendant did not have sexual intercourse with her because she did not want to.
Although Victim testified that the couple had a relationship, her testimony did not include
the specific fact that they had a sexual relationship and one that included “make-up sex,” the
very testimony Defendant needed to develop a complete and accurate theory of his case.

{47} We emphasize that we do not intend this opinion to restrict unduly the ability of a
district judge to manage acceptable boundaries of cross-examination. It bears repetition that

       trial judges retain wide latitude insofar as the Confrontation Clause is
       concerned to impose reasonable limits on such cross-examination based on
       concerns about, among other things, harassment, prejudice, confusion of the
       issues, the witness’ safety, or interrogation that is repetitive or only
       marginally relevant. . . . [T]he Confrontation Clause guarantees an
       opportunity for effective cross-examination, not cross-examination that is
       effective in whatever way, and to whatever extent, the defense might wish.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (internal quotation marks and citation
omitted). Here, the district court could have crafted carefully worded questions to elicit
testimony directly from Victim regarding the fact that she and Defendant had a past sexual
relationship and often engaged in “make-up sex,” without allowing defense counsel to cross-
examine Victim in “whatever way, and to whatever extent,” it wished. See id.

{48} Overall, Defendant’s proffered evidence would have had little prejudicial impact on
Victim. Therefore, the district court “failed to accord the proper weight to [Defendant’s]
constitutional right” when balancing the probative value against the prejudicial effect of the
evidence. See Stephen F., 2008-NMSC-037, ¶ 37. By excluding the evidence, the district
court stripped Defendant of his right to present a full and fair defense and to effectively
cross-examine Victim.

                                             13
The Exclusion of Defendant’s Proffered Evidence Was Not Harmless

{49} “Having concluded that [Defendant’s] Sixth Amendment Right was violated, we
must now [consider] whether reversal is warranted in this case. Confrontation Clause
violations are subject to harmless[-]error review.” Stephen F., 2008-NMSC-037, ¶ 38. When
conducting a harmless-error review, “[t]he State has the burden of establishing that [a]
constitutional error was harmless beyond a reasonable doubt.” State v. Tollardo, 2012-
NMSC-008, ¶ 25, 275 P.3d 110 (internal quotation marks and citation omitted). Because the
error here was constitutional, the error “is harmless only if we conclude that there is no
reasonable possibility the error contributed to the jury’s decision to convict Defendant.” Id.
¶ 45.

{50} In this case, there is a reasonable possibility that the court’s erroneous exclusion of
Victim’s history of “make-up sex” with Defendant affected the verdict. As we have already
explained, the evidence that Defendant wished to elicit went to the heart of his case; it was
the only evidence available to him by which he could establish his intent without sacrificing
his right not to testify. Absent this testimony, the jury only heard one side of the story.
Therefore, we hold that the exclusion of this evidence was not harmless beyond a reasonable
doubt.

CONCLUSION

{51} We reverse Defendant’s conviction and remand for a new trial consistent with this
opinion.

{52}   IT IS SO ORDERED.

                                              ________________________________
                                              RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

                                             14


454 P.2d 628 (1969)
Phyllis F. CLAYTON, Widow of Herbert Clayton, Deceased, Appellant,
v.
STATE COMPENSATION DEPARTMENT of the State of Oregon, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted February 3, 1969.
Decided May 21, 1969.
John J. Haugh, Portland, argued the cause for appellant. With him on the briefs were Tyler E. Marshall and Pozzi, Levin & Wilson, Portland.
Clayton Hess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Wallace Carpenter, Chief Counsel for State Compensation Department, Salem.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
O'CONNELL, Justice.
This is an action to recover widow's benefits and medical and funeral expenses under the Workmen's Compensation Act.[1] The claim arises out of the death of plaintiff's husband as a result of a heart attack suffered while acting within the course of his employment. The case was submitted to the jury which returned a verdict for plaintiff. Plaintiff appeals from a judgment notwithstanding the verdict.
At the time of his death plaintiff's husband, Herbert G. Clayton, was employed by Pittsburgh Plate Glass Company. He had started working for the company in 1954 after returning from military service. Clayton was off work during the fall of 1954 as a result of a condition diagnosed as "soldier's heart." The condition was characterized by chest pains, difficulty of breathing, and pain in the left arm. On April 30, 1959, while driving home from a *629 business call, Clayton experienced chest pains and radiation of pain down both arms. He was in shock and was hospitalized. He remained in the hospital until May 29, 1959, and did not resume work on a full time basis until October 6, 1959. After he returned to his job Clayton continued to consult his physician for treatment of respiratory infection, dyspnea and angina. During this period he regularly took nitroglycerine, digitalis, quinidine, penicillin, sparine and amytal.
In May of 1964 Clayton was assigned a new job in the company which required him to travel extensively in several states and soon he felt the pressure of the new assignment. He began working in the evenings and on weekends. His wife testified that his new job "was a tremendous load on him. He was very tired. Very conscientious with his job and trying to do a good job." She described her husband as a "perfectionist." During the week preceding his death he had been travelling in connection with his job. When he returned home he was "extremely tired" according to his wife's testimony. She was asked, "Did excitement have any effect upon your husband's condition," to which she replied, "Yes, it would bring on an angina condition, severe chest pains." A fellow employee when asked if there were pressures to which Clayton was subjected in the new job testified as follows:
"A Well, there certainly would not be physical pressures  at least not from what I have seen  but mental pressures, correspondence and a lot of telephone calls and this type of thing, intercompany and also accounts and then the traveling. I know he was quite upset when I talked to him from time to time, particularly, with all of the correspondence he had to do. When he had the secretaries, at the factory this helped the problem considerably but then he lost his secretaries and he told me many times that he was doing all of this either at home or on the road and he would work until 10:00 or 11:00 o'clock at night."
He further testified as follows:
"Q Did Mr. Clayton ever show or express his anxiety or concern over his job security?
"A Well, yes, in this sense, that if he more or less didn't make it because he was aware of his heart condition, he couldn't find employment with other companies and he was a little concerned in the sense that if he didn't make a success of this, then what would happen to him."
On April 15, 1965 decedent suffered a fatal heart attack while he was on the job.
The foregoing evidence was ample to show a causal connection between the decedent's employment and the stress and fatigue which he suffered. The crucial question, however, is whether the stress and fatigue was a causal factor in producing decedent's heart attack. Thus, we are again presented with the very difficult problem of deciding what constitutes sufficient proof of medical causation.
The only medical witness was Dr. Herbert Griswold, Jr., who was called by plaintiff. His testimony was related to a hypothetical question embodying the facts recited above. The material part of Dr. Griswold's testimony was as follows:
"THE WITNESS: * * * I really don't know in this particular case if it was attributable. * * * [I]t may well have contributed; certainly they have a pattern. * * * [T]his work pattern, as defined in the hypothetical question, was not desirable in a man that has a serious heart disease.
"This man had a serious heart disease. He not only had heart attacks, but he had heart failure. For me to state  I feel in all probability that this activity did contribute to his death on that particular day  is something I can't honestly  can't quite do. I just don't know.
"* * *
"A All I can say is that it may very well have done so but I can't say it probably did. The reasonable probability is that more chance that it did than it didn't.

*630 "* * *
"A * * * The medical profession doesn't understand how stress may or may not contribute to such an episode.
"* * *
"A * * * Such individuals have this pre-selection  but interestingly enough, when under stress * * * they tend to handle this differently than a person who does not have coronary artery disease * * *. When they are under stress, the blood lipids in their blood viscosity changes and their platelets are involved in clotting changes such that they become abnormally sticky.
"* * *
"A * * * We know an arterial blood clot is formed by platelets which are cells in the blood stream piling up. It isn't the ordinary blood clot you get out of the vein or in a test tube. It's a particular type of blood clot and this platelet or glutination or gumming together may come about after a fatty meal. It may come about following stress. Both of them will precipitate it and these platelets may then occlude in these instances where this is the primary cause of the heart attack.
"* * *
"A I am saying that in a group of people susceptible to coronary artery disease, stress probably is a factor, but in any single individual, it's difficult to say. * * * [W]e are not certain if you remove them from a stressful situation, whether or not they would live longer, * * *. [T]he * * * experiment of taking a group out and leaving them in a stressful situation has never been done.
"I would say that most physicians feel that such individuals as Mr. Clayton, that it was more desirable that he should not be in a stressful situation. And the hope being that possibly he might do better and live longer."
The trial court decided that this testimony was not sufficient to present a jury question on the issue of causation.
The question of the sufficiency of evidence to warrant submission of a case to the jury is difficult enough in any area of the law. In the heart attack cases the difficulties are multiplied because the medical authorities themselves are not agreed upon the basic question of whether stress of any kind can be a precipitating factor in causing a heart attack. We are not certain which of these conflicting theses is right but since we must proceed upon the basis of a uniform rule a choice must be made. We have chosen to reject the view that exertion or stress can never be a causative factor in these cases.
Once this step is taken the question remaining is whether the work-related stresses in the particular case at issue were a causal factor in the heart attack which ensued. This presents difficulties of proof. In the first place even where the medical witnesses on both sides agree on the general thesis that exertion and stress can cause heart attacks, these witnesses may have different theories as to the physiological processes which must occur in order to produce a heart attack through physical exertion or emotional stress. These differences in medical viewpoint usually do not come out in the testimony.[2] Moreover, whichever theory of the physiological process *631 the medical witness takes he cannot demonstrates whether the process did or did not occur in the particular case. The expert's conclusion is arrived at not on the basis of what occurred within the body of the particular person who suffered the attack but by drawing an inference from the general data of medical science. The process has been described as follows:
"Causation is determined, not as a matter of clinical fact but mainly as a matter of implication of law. The reason for this is that the gap between the medical theory that it is `possible' for a heart injury to result from exertion, and the necessary finding (by a preponderance) that the particular injury was `probably' caused or contributed to by ordinary work effort, is bridged by the acceptance of opinion evidence without reasonably complete clinical data." The Industrial Heart Case, 85 N.J.L.J. 244 (May 3, 1962).
The process can be described more specifically as follows. In making a diagnosis the doctor draws upon the conclusions of medical science demonstrating that certain diseases can be traced to certain causes. These conclusions are not stated in absolutes; they are expressed in terms of probabilities. From the empirical study of many cases medical science can say that if certain symptoms are present there is a probability that certain disease is present. The probability is stronger in the identification of some diseases than it is in others, depending upon what has been learned about the causes for the particular disease. The diagnosis in a particular case involves the reasoning that since this probability has been established in cases in general the probability exists in the particular case being diagnosed.[3] In the absence of evidence showing that the particular case in issue is distinguishable from cases in general it must be accepted that where medical science finds a probable causal relationship for the general group probable legal cause is established for the particular case being litigated.
When all heart attack cases are taken together it is easy enough to think of any single case in the group as being governed by the same probability that governs the whole group. However, if a particular heart attack is looked at alone and not as a part of a statistical sample it is difficult, indeed impossible, to say that the attack was caused by any one factor such as exertion or stress. The most that could be said in such a case is that the exertion, stress or any other single factor was a possible cause. The fact that the cause can be described only as a possibility when the heart attack is viewed as an isolated case does not render invalid the inference of probability based upon the generality of cases.
The difficulty which we have taken pains to explain has been seen in other cases. Thus Mr. Chief Justice Weintraub concurring in Dwyer v. Ford Motor Co., 36 N.J. 487, 178 A.2d 161 at 176 (1962) observed:
"* * * I appreciate regretfully that my reaction to this factual complex can be of no help in another case. It is but a gross reaction rather than a demonstrable product of a step-by-step analysis. When the possibility of causal connection is accepted, we cannot deny relief in all cases simply because science is unable decisively to dissipate the blur between possibility and probability. In such circumstances judges must do the best they can, with the hope their decisions square with the truth, and with a willingness to consider in succeeding cases whatever contribution scientific advances may offer."[4]
*632 It is apparent from the record in the present case that Dr. Griswold was attempting to express his opinion as to the "probability" or "possibility" of the cause of Clayton's heart attack upon the basis of the distinction we have just explained.[5]
In essence Dr. Griswold expressed the opinion that stress can be a cause of heart attack and that since Clayton was subject to stress it could have been a factor in causing the heart attack in this case. This was sufficient to present a jury question on the issue of medical causation. The observations in 2 Larson, Workmen's Compensation Law § 80.32, p. 322 (1968) on "[i]nterpreting cautious medical testimony" are appropriate at this point. There it is said:
"The distinction between probability and possibility should not follow too slavishly the witnesses' choice of words, as sometimes happens in respect to medical testimony. A doctor's use of such words as `might', `could', `likely', `possible' and `may have', coupled with other credible evidence of a non-medical character, such as a sequence of symptoms or events corroborating the opinion, is sufficient to sustain an award. It is a common experience of compensation and personal injury lawyers to find that the more distinguished a medical witness is, the more tentative and qualified are his statements on the witness stand. * * * The weight of such testimony, however, should not be too sharply discounted because of the disposition of the highly-trained scientific mind to refrain from unqualified statements or opinions on such matters as causation."
Because medical opinion on the effect of exertion and stress in heart attack cases rests upon such limited scientific knowledge there is reason to question the fairness of our present system of determining the issue of medical causation in these *633 cases. However, until the legislature provides a more effective method of dealing with the heart attack cases under workmen's compensation we see no other way of solving the problem.[6]
The judgment is reversed and the cause is remanded with directions to enter a judgment on the verdict.
NOTES
[1]  Since the claim arose out of the death of plaintiff's husband on April 15, 1965, the case is governed by the Workmen's Compensation Act prior to the amendments made in the 1965 and 1967 legislative sessions.
[2]  The problem is well stated by Mr. Chief Justice Weintraub in a concurring opinion in Dwyer v. Ford Motor Co., 36 N.J. 487, 178 A.2d 161 at 176 (1962), noted 29 NCAALJ 223 (1963):

"It may well be that the ultimate opinions of these experts hinged upon doctrinal differences with respect to minimum criteria necessary to show medically that a causal connection existed. Neither witness was interrogated along these lines. Perhaps if it were developed that the profession is divided upon the subject and there were an extensive discourse upon the contending theories with the scientific support for them, I could make an informed choice. On the present record, I think I must start with the agreed proposition that the work effort could have played a part, and superimposing the day's work upon the grievous illness, I get the feeling that decedent probably became the worse for it. Thus I concur in the result reached by the majority."
[3]  The reasoning process is not unlike that involved in applying the res ipsa loquitur doctrine: If an automobile veers off the highway and there is no evidence explaining why it did we permit the jury to conclude that because automobiles normally do not ordinarily veer off highways unless the driver is negligent it may be inferred that the driver was negligent in the particular case.
[4]  Chief Justice Weintraub then added:

"This rough basis for decision is not a happy one. A process which leads to an all-or-nothing result in so murky an area is not truly just either to the individual litigants or to the larger interests in the industrial scene. It may well be that until the medical profession can give us dispositive help, some arbitrary compromise would be the more tolerable course. This must be left to the other branches of government which alone can fashion a remedy of that quality."
[5]  Thus he testified:

"I am saying that in a group of people susceptible to coronary artery disease, stress probably is a factor, but in any single individual, it's difficult to say. * * * I really don't know in this particular case if it was attributable. * * * All I can say is that it may very well have done so but I can't say it probably did. The reasonable probability is that more chance that it did than it didn't." (Emphasis supplied.)
That plaintiff's counsel was also aware of the distinction we have discussed is evident from the following questioning.
"BY MR. WILSON:
"Q Doctor Griswold, in medical science as far as making diagnoses and prognoses, does not the medical profession often diagnose or prognose based on statistics?
"A Yes.
"Q For example, isn't there some statistical facts in medical science that a child at birth who weighs over ten pounds is a candidate  and will be in 100 percent of the cases  a diabetic?
"A The child?
"Q Yes.
"A No. Well, it's more possible that the mother may develop diabetes.
"Q It's one or the other, but it's 100 percent?
"A No. It's not 100 percent but probably
"Q (Interposing) The event isn't known, but this is a statistical diagnosis and prognosis; isn't it true?
"A Yes.
"Q And when you talk about other fields of medicine which have not advanced to the point of being certainties, then you also diagnose based upon statistics?
"A Yes.
"Q Therefore, then you say it's difficult to diagnose to any particular factual situation in any individual patient, is that what you have reference to, Doctor?
"A Yes."
For a case involving similar medical testimony see Holman v. Standard Oil Co. of Kentucky, 242 Miss. 657, 136 So.2d 591 (1962).
[6]  Suggestions for legislative change have been made. For example, see The Industrial Heart Case, 85 N.J.L.J. 244 (May 3, 1962) and Standards of Proof in the Heart Cases  The Dwyer Doctrine, 16 Rutgers L.Rev. 754 (1962).


        In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 15-349V
                                      Filed: August 20, 2015
                                           Unpublished

****************************
ARIKA BROWNE,                         *
                                      *
                  Petitioner,         *      Ruling on Entitlement; Concession;
                                      *      Influenza; Shoulder Injury (“SIRVA”)
                                      *      Special Processing Unit (“SPU”)
SECRETARY OF HEALTH                   *
AND HUMAN SERVICES,                   *
                                      *
                  Respondent.         *
                                      *
****************************
Andrew Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.

                                    RULING ON ENTITLEMENT 1

Vowell, Chief Special Master:

       On April 7, 2015, Arika Browne filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 [the
“Vaccine Act” or “Program”]. Petitioner alleges that she suffered a left shoulder injury as
a result of the administration of an influenza vaccine. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.

       On August 20, 2015, respondent filed her Rule 4(c) report in which she concedes
that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report
at 3. Specifically, respondent states that “DICP concludes that petitioner suffered a
SIRVA injury and that the preponderance of the medical evidence indicates that the
injury was causally related to the flu vaccination she received on September 15, 2014.”

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to
post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act
of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501
note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Id. at 3. Respondent further agrees that petitioner met the statutory requirements by
suffering her condition for more than six months. Id.

       In view of respondent’s concession and the evidence before me, I find that
petitioner is entitled to compensation.

                                  s/Denise K. Vowell
                                  Denise K. Vowell
                                  Chief Special Master


     Case: 08-10439 Document: 00511278904 Page: 1 Date Filed: 10/29/2010

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 29, 2010
                                     No. 08-10439
                                   Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DONNIE RAY WILLARD, JR.,

                                                   Defendant - Appellant

                    Appeal from the United States District Court
                         for the Northern District of Texas
                             USDC No. 5:02-CR-83-ALL

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Donnie Ray Willard, Jr., federal prisoner # 28690-177,
appeals the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence
following the recent amendments to the Sentencing Guidelines for crack cocaine
offenses. Willard pleaded guilty to possession with intent to distribute more
than 50 grams of cocaine base (crack cocaine) and was sentenced to 188 months
in prison.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 08-10439 Document: 00511278904 Page: 2 Date Filed: 10/29/2010

                                  No. 08-10439

      Willard contends the district court erred in:       (1) failing to order the
Probation Office to amend the presentence investigation report (PSR) to reflect
the two-level reduction (pursuant to the amendments) in his base offense level;
(2) failing to apply the reduction to his sentence; (3) relying on his prior felony
convictions and arrests, which he maintains were waived by the Government as
part of the plea agreement; (4) relying on his post-sentencing conduct because
he had no prior notice such evidence would be considered; (5) denying him
opportunity to object or refute the evidence at a hearing, in violation of his due
process rights; and (6) failing to appoint him counsel.
      Guideline Amendments 706 and 711 effectively decreased the base-offense
levels for crack cocaine offenses by two levels. See United States v. Burns, 526
F.3d 852, 861 (5th Cir. 2008); U.S.S.G. § 2D1.1; U.S.S.G. Supp. to App’x C,
Amend. 706, 711. When a defendant’s term of imprisonment is lowered by an
amendment to the Sentencing Guidelines, the district court “may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a)
to the extent that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission”. 18 U.S.C.
§ 3582(c)(2) (emphasis added). As reflected by the above-emphasized language
in § 3582(c)(2), the district court is not compelled to grant a sentence reduction
under that section. United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009),
cert. denied, 130 S. Ct. 3462 (2010). The denial of a § 3582(c)(2) motion is
reviewed for abuse of discretion. See id. at 671-72.
      Willard’s contention concerning the court’s failure to amend his PSR and
denial of his motion for a two-level reduction is refuted by the record. First,
pursuant to Guideline § 1B1.10(b), the district court’s order of dismissal stated
it determined the amended Guideline range applicable if the amendment had
been in effect at the time of the original sentence. Second, there is no authority,
and Willard points to none, requiring the Probation Office to amend the original
PSR or promulgate an addendum reflecting the specific Guideline range

                                        2
     Case: 08-10439 Document: 00511278904 Page: 3 Date Filed: 10/29/2010

                                   No. 08-10439

generated by the amendment. Third, Willard has not directed our court to any
authority that would require the district court to specifically recite the numerical
parameters of the amended Guideline range. Fourth, the sentencing court is not
required to provide reasons for its denial of a § 3582 motion, explain its
consideration of § 3553(a) factors, or specifically enumerate the amended
Guidelines range. See Evans, 587 F.3d at 674.
      With respect to Willard’s contention concerning the district court’s
consideration of his post-sentence conduct and pre-arrest criminal history, the
2008 amendments to the Guidelines specifically authorize the district court to
consider Willard’s post-sentencing conduct. U.S.S.G. § 1B1.10, cmt. n.1(B)(iii).
In addition, our court has “decline[d] to hold that a district court cannot consider
post-conviction conduct in determining whether to grant a sentencing reduction
under § 3582(c)(2)”. United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert.
denied, 130 S. Ct. 3374 (2010). Moreover, consideration of Willard’s criminal
history was proper and was not waived by the express language of Willard’s plea
agreement. See U.S.S.G. § 1B1.10, cmt. n.1.(B)(ii); § 3553(a).
      Further, even assuming these developments constituted “new evidence”
requiring notice, Willard has not shown harmful error because his assertions
would not entitle him to relief. See United States v. Mueller, 168 F.3d 186,
189-90 (5th Cir. 1999).
      The district court did not abuse its discretion by denying Willard’s motion
for a sentence reduction without an evidentiary hearing because he asserted no
disputed facts. See Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984); F ED.
R. C RIM . P. 43(b)(4).   Additionally, there was no abuse of discretion in not
appointing Willard counsel. See United States v. Whitebird, 55 F.3d 1007, 1010-
11 (5th Cir. 1995).
      AFFIRMED.

                                         3


909 F.2d 55
UNITED STATES of America, Appellee,v.Joe Uriel BEDOYA, Appellant.
No. 1314, Docket 89-1658.
United States Court of Appeals,Second Circuit.
Submitted May 18, 1990.Decided July 13, 1990.

Joe Uriel Bedoya, pro se.
Andrew J. Maloney, U.S. Atty., E.D.N.Y., Peter A. Norling, David C. James, Asst. U.S. Attys., for appellee.
Before OAKES, Chief Judge, PIERCE and PRATT, Circuit Judges.
OAKES, Chief Judge:

1
Joe Uriel Bedoya, pro se and in forma pauperis, appeals that portion of a second amended judgment of the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, entered on November 22, 1989, that reimposed a five-year term of supervised release as part of Bedoya's sentence following his guilty plea to a charge of importing in excess of five hundred grams of cocaine into the United States on January 8, 1987, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), 960(b)(2)(B)(ii) (1988).  Bedoya argues that this penalty of supervised release was inapplicable to his offense at the time of its commission.  We agree, vacate the sentence, and remand for resentencing in accordance with this opinion.

2
The district court sentenced Bedoya on April 29, 1987, to a five-year term of imprisonment, the five-year term of supervised release at issue in this appeal, a $10,000 fine and a $50 special assessment.  Bedoya moved the district court on April 20, 1989, pursuant to the former version of Fed.R.Crim.P. 35(a),1 to correct his sentence by deleting the term of supervised release.  Bedoya argued that the supervised release provisions, as enacted by the Anti-Drug Abuse Act of 1986 ("the 1986 amendment"), Pub.L. No. 99-570, 100 Stat. 3207, did not go into effect until November 1, 1987, when the standards for supervised release, codified at 18 U.S.C. Sec. 3583 (1988), were enacted.  He moreover urged that even if the court were instead to apply the special parole provisions included in the statute prior to modification by the 1986 amendment, he would not be subject to a special parole term, since the statute as amended in 1984 expressly authorized special parole terms only for violations involving under one thousand grams of cocaine, but not for violations involving greater than one thousand grams.  Arguing that he was found importing 1,186 grams of cocaine, Bedoya urged the court to vacate the supervised release term without imposing a special parole term in its place.

3
The Government initially agreed with Bedoya and consented to modification of the sentence, without replacement of the term of supervised release with a period of special parole.  The district court thereafter deleted the period of supervised release and entered an amended judgment on May 23, 1989.  On October 19, 1989, however, the Government changed its position and argued that although the supervised release term was unauthorized at the time of Bedoya's offense, a special parole term should have been imposed in its place.  The Government stated that the charge to which Bedoya had pleaded guilty involved the importation of only an amount "in excess of 500 grams" of cocaine into the United States, even though the actual amount Bedoya had been found with was in excess of 1000 grams.2   The district court, "[f]or the reasons stated in the letter," again modified its judgment, but without explanation reinstated the five-year term of supervised release, rather than the special parole recommended in the Government's letter.  The second amended judgment, from which this appeal lies, was entered on November 22, 1989.

4
There has been much recent litigation over the intricacies of the multiple amendments to the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("Comprehensive Act"), Pub.L. No. 91-513, 84 Stat. 1437.  Given the very confusing and somewhat irregular history of the Comprehensive Act, we find it necessary to review the evolution of the provisions in some detail.

5
Prior to 1984, a section of the Comprehensive Act, the Controlled Substances Import and Export Act ("Import and Export Act"), which is codified at 21 U.S.C. Secs. 951-71 and governs Bedoya's offense, provided for a bifurcated penalty scheme.  For offenses involving importation of the more harmful controlled substances, such as heroin and cocaine, it authorized a sentence of up to 15 years' imprisonment and/or up to a $25,000 fine, and allowed imposition of a special parole term of not less than three years to accompany sentences including imprisonment.  See 21 U.S.C. Sec. 960(b)(1) (1982).  Offenses involving importation of all other substances were governed by less stringent penalty provisions.  See 21 U.S.C. Sec. 960(b)(2) (1982).  The Import and Export Act as then in effect moreover specified the conditions of special parole terms.  See 21 U.S.C. Sec. 960(c) (1982).

6
On October 12, 1984, Congress enacted the Comprehensive Crime Control Act of 1984 ("the 1984 amendment"), Pub.L. 98-473, 98 Stat. 1837, which, among other things, amended the Import and Export Act by including enhanced penalty provisions for offenses involving importation of greater amounts of controlled substances.  In particular, it provided that persons convicted of importing an amount of cocaine in excess of 1000 grams would be subject to up to 20 years' imprisonment and/or up to a $250,000 fine.  See id. Sec. 504, 98 Stat. at 2070, codified at 21 U.S.C. Sec. 960(b)(1)(B) (Supp. II 1984).  Apparently in anticipation of forthcoming deletions of provisions authorizing special parole terms, Congress chose not to authorize imposition of a special parole term under this enhanced penalty provision.  However, it continued to authorize (perhaps due to an oversight) special parole terms of not less than three years for offenses involving importation of lesser quantities of cocaine (to accompany sentences which included terms of imprisonment up to 15 years).  See 21 U.S.C. Sec. 960(b)(2) (Supp. II 1984).  The 1984 amendment moreover provided that the subsections in the Act that still authorized special parole terms, 21 U.S.C. Sec. 960(b)(2) and 960(b)(3), as well as the provision specifying the conditions of special parole, 21 U.S.C. Sec. 960(c), would be deleted as of November 1, 1987, see Pub.L. No. 98-473 Secs. 225(a), 235(a)(1), 98 Stat. at 2030-31, presumably to coincide with when the conditions for supervised release would be enacted by the United States Sentencing Commission.

7
Before this deletion could take effect, however, Congress on October 27, 1986, enacted the 1986 amendment to the Comprehensive Act, Pub.L. No. 99-570, 100 Stat. 3207.  Section 1302 of the 1986 amendment, Pub.L. No. 99-570 Sec. 1302, 100 Stat. at 3207-15 to 3207-18, modified the Import and Export Act by including an additional enhanced penalty provision:  for offenses involving, inter alia, importation of 1 kilogram or more of a substance containing heroin, or of 5 kilograms or more of a substance containing cocaine, Congress authorized mandatory minimum terms of 10 years' imprisonment, a substantial fine, and at least 5 years of supervised release.  See 21 U.S.C. Sec. 960(b)(1) (1988).  Section 1302 of the 1986 amendment also modified the Import and Export Act by striking the previous enhanced penalty provision, and replacing it with one that was much like the previous, but that required an offense to involve the importation of cocaine in the amount of only 500 grams (rather than the previous 1000 grams, see 21 U.S.C. Sec. 960(b)(1)(B) (Supp. III 1985)) to trigger its penalty provisions, which now authorized a term of supervised release of not less than four years as part of a sentence including a mandatory five-year term of imprisonment.  See 21 U.S.C. Sec. 960(b)(2) (1988).  Finally, section 1302 of the 1986 amendment struck the previous provision governing offenses involving importation of the more harmful substances in any quantity, see 21 U.S.C. Sec. 960(b)(2) (Supp. III 1985), and replaced it with a similar provision that authorized imposition of a supervised release term of at least three years in addition to a term of imprisonment.  See 21 U.S.C. Sec. 960(b)(3) (1988).

8
Following the enactment of the 1986 amendment, much confusion arose as to its effective date.  In addition to its provisions noted in the above paragraph, section 1004 of the 1986 amendment obfuscated matters greatly by stating that all previous references to "special parole term" would be altered to "term of supervised release," effective November 1, 1987.  See Pub.L. No. 99-570 Sec. 1004, 100 Stat. at 3207-6.  But because section 1302 of the 1986 amendment had simply deleted and replaced one of the paragraphs which, under the previous version of the Act, had contained references to special parole terms, see 21 U.S.C. Sec. 960(b)(2) (Supp. III 1985), the only remaining reference to special parole terms, as of November 1, 1987, was in the provision now (after the 1986 amendment) codified in 21 U.S.C. Sec. 960(b)(4) (Supp. IV 1986).

9
To attempt to make sense of a nearly incomprehensible situation, courts have read the effective date specified in section 1004(b)--November 1, 1987--as applying only to section 1004(a) (and therefore to the amendment of 21 U.S.C. Sec. 960(b)(4)), and have held that all other provisions of the 1986 amendment (thus including the provisions now codified in 21 U.S.C. Sec. 960(b)(1), (b)(2), and (b)(3)) are deemed to take effect on their date of enactment, October 27, 1986.  See, e.g., United States v. Levario, 877 F.2d 1483, 1487-89 (10th Cir.1989);  United States v. Padilla, 869 F.2d 372, 381-82 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3223, 106 L.Ed.2d 572 (1989).

10
This, however, created an anomalous situation, because for offenses (such as Bedoya's) that were committed after October 27, 1986, but before November 1, 1987, courts could impose supervised release terms, pursuant to 21 U.S.C. Sec. 960(b)(1), 960(b)(2), or 960(b)(3) (as modified by the 1986 amendment), even though the conditions for supervised release had not yet been enacted by the United States Sentencing Commission.  Again attempting to make sense of the maze of statutory oversights, recent courts began holding that the imposition of supervised release terms for offenses committed prior to November 1, 1987, was unauthorized, notwithstanding the express statutory language, and that special parole terms should be imposed in their place.  See, e.g., Mercado v. United States, 898 F.2d 291, 292 (2d Cir.1990) (per curiam);  United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988);  United States v. Smith, 840 F.2d 886, 889-90 (11th Cir.), cert. denied, 488 U.S. 859, 109 S.Ct. 154, 102 L.Ed.2d 125 (1988);  United States v. Byrd, 837 F.2d 179, 181-82 (5th Cir.1988).

11
Having waded through this statutory history, we note that Bedoya's offense was one of those that fell between the effective date of most provisions of the 1986 amendment (October 27, 1986), and November 1, 1987.  Following the strong authority cited above that has held that no supervised release terms are authorized for such offenses, we vacate the district court's imposition of such a term in its second amended judgment against Bedoya.

12
Nevertheless, we think that the district court has authority to impose a special parole term upon Bedoya in place of the supervised release term.  Contrary to Bedoya's suggestion, it is immaterial whether his offense is deemed for sentencing purposes to involve importation of cocaine in an amount greater than 500 grams (the charge to which he pleaded guilty), or the 1,186 grams he actually was found importing.  For offenses committed after October 27, 1986, but before November 1, 1987, we conclude that courts may impose special parole terms in place of the authorized supervised release terms, but that rather than looking back to the Act's penalty scheme as it existed prior to the 1986 amendment to determine when special parole terms are authorized, they may simply substitute special parole terms for whatever length of time and under whatever circumstances supervised release terms are authorized by the 1986 amendment.

13
Because Bedoya's offense took place after section 1302 of the 1986 amendment was enacted, we consider 500 grams (not the previous 1000 grams) to be the proper trigger amount for the penalty provision governing his offense.  The district court may therefore simply impose a term of special parole in place of the supervised release term authorized in the statute.

14
Judgment vacated and cause remanded for sentencing not inconsistent with this opinion.

1
 This former version is applicable to offenses committed prior to November 1, 1987, and authorizes a district court to correct an illegal sentence at any time.  See Fed.R.Crim.P. 35(a) as in effect prior to amendment by Pub.L. No. 98-473, Sec. 215, 98 Stat. 1837, 2015-16 (1984)

2
 This seeming anomaly was likely the result of the 1986 amendment, which changed from 1000 grams to 500 grams the amount of cocaine necessary to trigger the enhanced penalty provisions appropriate to Bedoya's offense.  Compare 21 U.S.C. Sec. 960(b)(1)(B) (Supp. III 1985) with 21 U.S.C. Sec. 960(b)(2)(B) (1988).  Because Bedoya was charged under the version of the Act as modified by the 1986 amendment, he was charged with importing only that amount of cocaine that was relevant under the Act (500 grams), rather than the full actual amount of 1,186 grams involved in his offense


                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

8-4-2008

Brown v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1436

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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                      No. 07-1436
                      ___________

                   ABDUL BROWN,
                                           Appellant

                            v.

 PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
    JEFFREY A. BEARD; WILLIAM STICKMAN;
   LANCE COUTURIER; M.D. FRED MAUE, M.D.;
  DONALD WILLIAMSON; RONALD BLANDFORD;
       NEAL MECHLING; PETE SAAVEDRA;
        LOUIS FOLINO; COUNSELOR IVAN
      ____________________________________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. Civil No. 04-1361)
       District Judge: Honorable Gary L. Lancaster
       ____________________________________

        Submitted Under Third Circuit LAR 34.1(a)
                     July 25, 2008

Before: SLOVITER, BARRY and NYGAARD, Circuit Judges

              (Opinion filed: August 4, 2008)

                        _________

                         OPINION
                        _________
PER CURIAM

       Abdul Brown, a pro se prisoner, is currently incarcerated in the Federal Detention

Center-Philadelphia. Brown filed this lawsuit in the United States District Court for the

Western District of Pennsylvania 1 against the Pennsylvania Department of Corrections

(“DOC”) and numerous prison officials for violations of 42 U.S.C. §§ 1981, 1983, 1985,

1986 and 12101, et. seq. Brown raised claims of cruel and unusual punishment,

retaliation, race and class discrimination, and conspiracy; he also alleged violations of due

process and the Americans with Disabilities Act (“ADA”). The DOC Defendants moved

for summary judgment, and Brown failed to respond.2 The Magistrate Judge

recommended granting summary judgment, and the District Court adopted that

recommendation.

       Brown subsequently filed a motion to appeal nunc pro tunc, explaining that he had

been transferred to a new facility while summary judgment briefing occurred, and that

prison officials had denied him access to his legal mail. The District Court granted relief,

vacating its order granting summary judgment and allowing Brown to respond to

defendants’ summary judgment motion. Brown filed a brief, an affidavit in support, and

copies of various Pennsylvania regulations. Brown also filed numerous medical records,

       1
       At the time of filing the complaint, Brown was incarcerated at SCI-Fayette in
LaBelle, Pennsylvania.
       2
         Summary judgment was granted as to another defendant, Dr. Peter Saavedra,
earlier in the case.

                                             2
correspondence with prison officials, and news articles. The District Court then adopted

the Magistrate Judge’s prior recommendation, and granted defendants’ motion for

summary judgment, without elaboration. Brown timely appealed.

         We have jurisdiction under 28 U.S.C. § 1291. We review an order granting

summary judgment de novo, and we apply the same standard that the District Court

should have applied. MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.

2005).

         On February 26, 2004, Brown was transferred to the Long Term Segregation Unit

(“LTSU”) at SCI-Fayette. Brown alleges that prison officials improperly placed him in

the LTSU based on his “mentally ill behavior,” and that the reasons provided on his

transfer petition were falsified and misrepresented. Brown also alleges that the LTSU is

an experiment regarding “African-American psychology,” with the purpose of

“destroy[ing] the African American mind,” and that defendants failed to provide him

adequate psychiatric treatment, instead relying “just [on] drugs to leave him in a . . .

stupor.” Brown accuses LTSU officials of obstructing his litigation against defendant

Beard and others, and asserts that, but for his being of African descent, engaging in

litigation and being mentally ill, he would not have been placed in the LTSU. Brown also

alleges that defendants are deliberately indifferent to his health and safety.

         Based on these allegations, Brown claimed that his rights to due process, adequate

medical care, and equal protection had been violated. He also asserted violations of the

                                              3
First Amendment and the ADA, and he claimed that defendants had retaliated against

him. On appeal, Brown challenges the District Court’s grant of summary judgment on his

due process, ADA and First Amendment claims.3

       Once the moving party demonstrates the absence of a genuine material factual

dispute, the non-moving party must proffer “specific facts showing that there is a genuine

issue for trial.” Fed. R. Civ. P. 56(e). Brown asserts that prison officials denied him due

process under the Fourteenth Amendment by transferring him to the LTSU without notice

and depriving him of the opportunity to challenge the reasons for the transfer. Routine

transfers to administrative segregation do not impinge on liberty interests protected by the

Due Process clause unless the conditions in administrative segregation present a

“significant and atypical hardship in relation to the ordinary incidents of prison life.”

Sandin v. Conner, 515 U.S. 472, 484 (1995). Even where the conditions of confinement

present a significant and atypical hardship, triggering the right to due process, placement

in administrative segregation comports with due process so long as prison officials afford

a prisoner sufficient procedural protections. See Wilkinson v. Austin, 545 U.S. 209

       3
        As Brown has not raised his equal protection or retaliation claims on appeal, we
consider those arguments waived. Anspach v. City of Phila., 503 F.3d 256, 259 n.1 (3d
Cir. 2007) (citing Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 26
F.3d 375, 398 (3d Cir. 1994)). Although Brown has not expressly made an argument
under the Eighth Amendment on appeal, we will address that claim because it is
predicated on the same facts as his claim under the ADA.

                                              4
(2005).4

       We have determined that due process does not require prior notice of a transfer

where the post-transfer periodic review of an inmate’s placement in segregation provides

the inmate with a meaningful opportunity to challenge the grounds of his continued

segregation. Shoats v. Horn, 213 F.3d 140, 145 (3d Cir. 2000). Such periodic review

must provide a meaningful, and not merely technical, opportunity to be heard. See

Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986) (Due process violation where

officials applied justifications for segregation in “rote fashion”).

       Brown admits that the prison has provided him with periodic review, and that he

has attended and testified at his review hearings every 90 days. He nonetheless contends

that the hearings are a sham and the result of the hearings a foregone conclusion. In his

affidavit, Brown asserts that unnamed prison officials have told him that the periodic

reviews do not provide a realistic chance of release into the general prison population

because the LTSU is designed to house those in need of long-term segregation. Brown

suggests that, once prison officials branded him as an inmate needing long-term

segregation, they simply rubberstamped his continued segregation. Brown’s affidavit,

       4
        The record indicates that DOC has revised the procedures for placement in the
LTSU, such that inmates are now given notice and an opportunity to respond before being
transferred to the LTSU. (Pl’s Opp., Ex. C, at 26-29) (letter from Jeffrey Beard to Judge
Richard Caputo, Middle District of Pennsylvania). Appellees also state that the LTSU
was abolished in February 2007. Appellees’ Br., 3. As Brown seeks compensatory
damages, his claims are not moot.

                                               5
submitted in response to defendants’ motion, does not support a conclusion that his

reviews were a sham.

       Brown also contends on appeal that prison officials have never articulated a reason

for his confinement in the LTSU. The record belies that assertion. The documentary

evidence submitted by the parties establishes that prison officials believed Brown’s

misconduct warranted his continued placement in the LTSU. (Deft.’s Mot. Summ J., Ex.

D) (30-day review assessment showing Brown’s continued poor conduct), Ex. F

(misconduct record demonstrating Brown’s continued pattern of threats and assaults on

staff). The record reveals that the prison characterized Brown’s behavior alternatively as

deliberate, i.e., designed to manipulate those around him, and as the product of mental

illness and poor impulse control. (Pl’s Mot. Summ. J., Ex. I) (transfer individual

treatment plan stating that Brown suffers from multiple Axis I and Axis II diagnoses, but

that he was psychiatrically stable and should be placed in the LTSU due to the ongoing

risk of staff assaults and self-harm). The mental health and correctional staff who

evaluated Brown after his transfer to the LTSU stated that he had no treatable Axis I

issues, and that his misconduct was associated with his Axis II issues. (Deft.’s Mot.

Summ J., Ex. A.) In other words, whatever mental illnesses Brown may have, prison

personnel have determined that none would preclude his transfer to the LTSU. As Brown

                                             6
failed to satisfy his burden under Rule 56(e), summary judgment was properly granted.5

       Brown next contends that his placement in the LTSU violates the ADA because he

has no access to mental health services while housed in the LTSU. Although defendants

did not move for summary judgment on Brown’s ADA claim, and the District Court did

not address this claim, it is clear that Brown’s claim must fail as a matter of law. Title II

of the ADA states, “[N]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” § 42 U.S.C. 12132. Title II of the ADA applies to state prisons. Pennsylvania

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). However, Brown has not alleged

       5
        Brown also asserts on appeal that the District Court improperly resolved a factual
issue regarding Brown’s claim that prison officials violated due process by drafting him
into experiments against his will, in contravention of DOC policy. See Washington v.
Harper, 494 U.S. 210, 221-22 (1990) (prisoner “possesses a significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs under the Due Process
Clause of the Fourteenth Amendment.”). Although defendants failed to move for
summary judgment on this claim, and the District Court overlooked it as well, Brown’s
allegations fail to state a claim. Brown asserts that the LTSU constitutes an experiment
designed to destroy the minds of African-American inmates, but has not alleged facts
sufficient to show that he is entitled to relief. See Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008). This claim, that the LTSU constitutes a psychological
experiment involving the involuntary administration of drugs, is essentially a composite
of two other claims: a due process claim regarding Brown’s placement in the LTSU, and
an Eighth Amendment claim regarding Brown’s medical care in the LTSU. In response
to defendants’ motion for summary judgment, Brown was required to come forward with
evidence in support of these two claims. Therefore, despite defendants’ failure to move
for summary judgment on the prison experiment claim, Brown necessarily would have
submitted whatever evidence he had in support of this claim when he submitted evidence
in support of his due process and Eighth Amendment claims.

                                              7
facts sufficient to show that the prison denied him access to mental health treatment “by

reason of” his alleged disabilities. Brown alleges that the prison ignored his alleged

disabilities in order to justify his placement in the LTSU – not that they placed him in the

LTSU because of discriminatory animus based on his alleged mental disabilities.

Accordingly, Brown’s ADA claim must fail.

         The record establishes that Brown has not been deprived of medical care in the

LTSU. Mere disagreements over the course of medical treatment do not support a claim

for a violation of the Eighth Amendment. Monmouth County Corr. Inst. Inmates v.

Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987). The record demonstrates that prison medical

personnel have routinely assessed Brown while he has stayed on the LTSU. Brown

challenges his regimen of medications, which allegedly leaves him in a “stupor,” but this

argument states only his disagreement with treatment methods, i.e., his preference for

medication supplemented by psychotherapy instead of medication alone.

         Brown also appeals the District Court’s grant of summary judgment as to his First

Amendment claim. Brown does not challenge the LTSU policy that permits limited

access to publications; instead, he asserts that he is deprived of even those publications

permitted under the restrictive publications policy upheld by the Supreme Court. See

Beard v. Banks, 548 U.S. 521 (2006). However, Brown does not proffer any evidence in

support of this claim. Brown has not established that there is a genuine factual dispute for

trial.

                                              8
      For these reasons, the District Court properly granted appellees’ summary

judgment motion and denied appellant’s summary judgment motion.

      Accordingly, we will affirm the District Court’s order.

                                         9