United States v. Bayless

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 10, 2025
• Docket: 24-7033
• Status: Unpublished

Opinion

Appellate Case: 24-7033 Document: 56-1 Date Filed: 07/10/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 10, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 24-7033 v. (D.C. No. 6:22-CR-00174-RAW-1) (E.D. Okla.) DANIEL WAYNE BAYLESS,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, BALDOCK, and CARSON, Circuit Judges. _________________________________

A jury found Defendant Daniel Bayless guilty of four counts of Aggravated

Sexual Abuse in Indian Country. Pursuant to Federal Rule of Evidence 412, the district

court excluded evidence that Defendant’s victim, N.A., had made a prior,

“unsubstantiated” allegation of sexual abuse against another man when she was five

years old. Defendant appeals, arguing exclusion of this evidence violated his Sixth

Amendment right to confront the witnesses against him. But the Constitution does not

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-7033 Document: 56-1 Date Filed: 07/10/2025 Page: 2

require admission of irrelevant or general impeachment evidence like this remote

allegation against someone other than Defendant that cannot be proven true or false.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Defendant’s conviction.

N.A. considered Defendant her father. She lived with Defendant’s mother, but

she and her younger siblings would sometimes spend weekends with Defendant at his

residence in Indian Country. Defendant lived with his sister, Kristen, and his

stepfather. But Defendant was often alone with the children, and N.A. would

commonly sleep with Defendant in his bedroom. From January to December 2020,

when N.A. was around nine years old, Defendant sexually abused her. N.A. disclosed

the abuse in 2022, telling Kristen first, then Defendant’s mother, and finally a friend,

whose mother became concerned for N.A.’s safety.

A Federal Grand Jury charged Defendant, an Indian, with four counts of

Aggravated Sexual Abuse in Indian Country in violation of 18 U.S.C. §§ 1151, 1153,

2241(c), and 2246(2)(A), (B). Defendant pleaded not guilty. Before trial, Defendant

expressed intent to enter evidence relating to a prior allegation of sexual abuse N.A.

had made years prior, when she was five years old. At that time, N.A. lived with her

mother and stepfather, Daniel Howe. When visiting Defendant’s mother, she said,

“someone I sleep with puts their hands down my panties.” She said it was her

stepfather, Howe. The Department of Human Services (DHS) investigated the

allegation and interviewed the family and N.A. But during the interview, N.A. denied

that her stepfather had ever touched her inappropriately. Instead, N.A. said she thought

Kristen touched her on her bottom but that N.A. was asleep when it happened. As N.A.

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denied that her stepfather had sexually abused her, DHS “UNSUBSTANTIATED” the

allegation against him.

The Government moved to exclude evidence relating to N.A.’s prior allegation

under Federal Rule of Evidence 412. Rule 412 applies to a civil or criminal proceeding

involving alleged sexual misconduct and prohibits the admission of “(1) evidence

offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered

to prove a victim's sexual predisposition.” Fed. R. Evid. 412(a). But there are

exceptions to Rule 412. Evidence is admissible despite Rule 412(a) if exclusion of the

evidence “would violate the defendant’s constitutional rights.” Fed. R. Evid.

412(b)(1)(c). The Government conceded Rule 412 does not extend to evidence of prior

false claims. But the Government argued no evidence suggested N.A.’s prior

allegation was false, so Rule 412 barred admission of N.A.’s prior allegation. The

district court agreed, observing, “[w]hile DHS was not able to substantiate the

allegations, there is no evidence within the report that N.A. lied or made any false

allegations.” The court also concluded exclusion of N.A.’s prior allegation would not

violate Defendant’s constitutional rights, so the Rule 412(b)(1)(c) exception did not

apply. “[O]ut of an abundance of caution,” the court allowed the defense to ask N.A.

whether anyone had ever influenced her to lie about any sexual abuse allegation. But

the court granted the Government’s motion to exclude evidence relating to N.A.’s prior

allegation.

We review a district court’s exclusion of evidence under Rule 412 for abuse of

discretion. United States v. A.S., 939 F.3d 1063, 1070 (10th Cir. 2019). “A district

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court abuses its discretion only where it (1) commits legal error, (2) relies on clearly

erroneous factual findings, or (3) where no rational basis exists in the evidence to

support its ruling.” Dullmaier v. Xanterra Parks & Resorts, 883 F.3d 1278, 1295 (10th

Cir. 2018). But to the extent Defendant raises a constitutional challenge to the

exclusion of evidence, we review the district court’s exclusion of that evidence de

novo. A.S., 939 F.3d at 1071.

We first address Defendant’s reply-brief argument that Rule 412 does not extend

to N.A.’s prior “unsubstantiated” allegation. Defendant rightly observes Rule 412

prohibits evidence offered to prove one of two things: 1) “that a victim engaged in

other sexual behavior” or 2) “a victim’s sexual predisposition.” Fed. R. Evid. 412(a).

Defendant argues evidence of a prior “unsubstantiated” allegation does not fall into

either of those two categories but rather implicates N.A.’s credibility as a witness.

Thus, Defendant argues, evidence of N.A.’s prior allegation does not offend Rule 412

because Defendant is not offering the evidence for a prohibited purpose. But

Defendant waived this argument by failing to adequately raise it in his opening brief.

“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant's opening brief.” Bronson v. Swensen, 500 F.3d

1099, 1104 (10th Cir. 2007); see also Burke v. Regalado, 935 F.3d 960, 1014 (10th

Cir. 2019) (“Issues not raised in the opening brief are deemed abandoned or waived.”

(citation omitted)). An adequate opening brief contains an argument section that

identifies “appellant's contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies.” Fed. R. App. P.

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28(a)(8)(A)). This requirement is “designed to facilitate efficient appellate review by

allowing one's adversary to respond to focused argument supported by authority.”

Burke, 935 F.3d at 1014 (quoting MacArthur v. San Juan Cty., 495 F.3d 1157, 1160

(10th Cir. 2007)).

Here, Defendant’s opening brief fails to clearly assert and support his later

raised contention that Rule 412 does not apply to N.A.’s prior allegation. As best we

can tell, Defendant’s opening brief only mentions the issue in one sentence contained

in his summary of argument. Defendant says, “[t]his evidence is not barred by rape

shield laws because it pertains to the alleged victim’s truthfulness, not her sexual

behavior, as clarified in United States v. Pablo, 696 F.3d 1280 (10th Cir. 2012).”

Aplt’s Br. at 6. But this single sentence contained in Defendant’s summary of

argument and lacking reasoning and analysis is not enough to adequately raise an issue.

It is also unclear how the case Defendant cites, without a page number, supports his

point, and Defendant does not tell us. The rest of Defendant’s brief never clearly

addresses the issue, and the Government understandably believed Defendant conceded

it. Consequently, Defendant waived any challenge to Rule 412’s applicability here.

See A.S. 939 F.3d at 1072 (assuming Rule 412 applied to evidence of a prior sexual

assault allegation that could not be proven true or false where defendant did not

challenge Rule 412’s applicability on appeal).

Assuming Rule 412 extends to N.A.’s prior allegation, we next consider whether

an exception to Rule 412 applies under 412(b)(1)(c) because exclusion of the evidence

“would violate the defendant’s constitutional rights.” Defendant argues excluding

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evidence of N.A.’s prior allegation violated Defendant’s right “to be confronted with

the witnesses against him” under the Sixth Amendment’s Confrontation Clause. U.S.

Const. amend. VI. We review Defendant’s constitutional challenge de novo. See A.S.,

939 F.3d at 1071.

The Confrontation Clause guarantees criminal defendants “‘an opportunity for

effective cross-examination.’” United States v. Palms, 21 F.4th 689, 702 (10th Cir.

2021) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). That said, “the

right is not limitless. It does not guarantee a defendant the right to cross-examine

witnesses ‘in whatever way, and to whatever extent, the defense might wish.’” Id.

(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). More specifically,

“[e]vidence 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.” United States v. Powell, 226 F.3d 1181,

1198 (10th Cir. 2000). And we have recognized, “the class of cases in which evidence

otherwise barred by the rape shield statute has been deemed to be constitutionally

compelled is restricted to those which demonstrate a theory of witness bias or motive

to lie.” A.S., 939 F.3d at 1073 (citation omitted). Most significantly here, “the

Constitution does not mandate the admission of irrelevant or general impeachment

evidence.” Id. at 1074.

Defendant only offers evidence of N.A.’s prior allegation as general

impeachment evidence, but it serves even that non-constitutionally compelled purpose

poorly. Defendant does not argue N.A.’s prior allegation shows bias or motive to lie

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on the part of N.A. Nor could he. N.A. made the allegation against another man when

she was five years old, and the incident has nothing to do with Defendant. Rather than

arguing the evidence shows bias or motive to lie, Defendant argues the jury could infer

N.A. lied about the prior allegation because DHS “unsubstantiated” the investigation

against her stepfather. In other words, Defendant argues the evidence brings into

question N.A.’s general credibility. But Defendant points to nothing else in the DHS

Report to suggest falsity, and he does not otherwise challenge the district court’s

factual finding that the Report contains no evidence N.A. lied or made any false

statement. It is doubtful this unsubstantiated allegation N.A. made when she was five

years old says anything about her character for truthfulness. But in so far as this

evidence constitutes general impeachment evidence, under our precedents it is still not

required by the Confrontation Clause.

We AFFIRM Defendant’s conviction.

Entered for the Court

Bobby R. Baldock Circuit Judge