UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-50106
(Summary Calendar)
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United States of America,
Plaintiff-Appellees,
versus
Paul Garfield Dumpson,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
For the Western District of Texas
(93-CR-446)
_______________________________________________
(October 19, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant Paul Garfield Dumpson appeals his conviction on
three counts of kidnapping a person under the age of eighteen
within the special maritime and territorial jurisdiction of the
United States, in violation of 18 U.S.C. § 1201(a)(2), and five
counts of aggravated sexual abuse, in violation of 18 U.S.C. §
2241(a). Finding no error, we affirm.
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
I
This case involves the kidnapping and subsequent sexual
assault of three minor females during a three-month period in 1993.
All three offenses occurred on federal government property, at Fort
Bliss, Texas. At time of the crimes, the young victims))Christy,
Monica, and Crystal))were, respectively, sixteen, thirteen, and
fifteen years of age.
The three incidents of kidnapping and sexual assault involved
strikingly similar facts. In each instance, Dumpson approached the
victim while driving an automobile; and the victim willingly agreed
to get into the car with him.1 At some point after Dumpson began
driving, the victims became aware that he was transporting them to
a location other than where they had requested to go. Each
repeatedly asked to be let out of the car or to be taken to her
desired destination. Ignoring their pleas, Dumpson drove the young
girls to a remote tract of federal land in the desert, where he
assaulted them and forced them to take part in various sexual acts.
A jury convicted Dumpson of three counts of kidnapping a minor
for the purpose of committing aggravated sexual abuse and five
counts of aggravated sexual abuse. The district court sentenced
him to terms of 500 months on each count to run concurrently.
Dumpson appeals his convictions alleging: (1) that the trial court
improperly allowed the prosecution to use leading questions; (2)
Both Christy and Crystal got into the car with Dumpson after he asked
where they were going and offered to give them rides to their stated
destinations. Monica apparently accompanied Dumpson after he asked her for
directions and then offered her five dollars to get into the car and help him
locate a certain street.
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that the use of leading questions deprived him of his
constitutional right to confront the witnesses; (3) that the
evidence was insufficient to support the kidnapping convictions;
and (4) that the district court erred in sentencing.
II
Dumpson contends that the trial court committed reversible
error by failing to sustain his objections to the prosecutor's use
of leading questions during Crystal's testimony.2 Dumpson also
argues that his conviction should be reversed because the
prosecutor's extensive use of leading questions amounted to
testifying for each of the three victims.
As to those questions to which Dumpson lodged timely
objections, we review the district court's actions for abuse of
discretion.3 United States v. Clinical Leasing Service, Inc., 982
F.2d 900, 905 (5th Cir. 1992). We review the remaining leading
questions for plain error. See FED. R. CRIM. P. 52(b); United
States v. Olano,___U.S.___, ___, 113 S. Ct. 1770, 1776, 123 L. Ed.
2d 508 (1993); United States v. Steen, 55 F.3d 1022, 1033 (5th Cir.
For example, the trial court overruled Dumpson's objection to the
following line of questioning:
Q: Where did he put the knife?
A: I just saw him put -- I am not really sure. I think he put it in the
pocket or --
Q: Behind him somewhere?
A: Behind him somewhere. Yes.
Q: Then he had both hands free?
A: Yes.
The record reflects that Dumpson did not make a continuing objection
to the prosecutor's use of leading questions, but lodged only three objections
during Crystal's direct testimony, one of which the court sustained.
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1995).
A
The use of leading questions during direct examination of a
witness is restricted to instances where it is "necessary" to
develop the testimony. FED. R. EVID. 611(c). Appellate courts
traditionally have granted great deference to trial courts' rulings
on the use of leading questions pursuant to Rule 611(c). Stine v.
Marathon Oil Co., 976 F.2d 254, 266 (5th Cir. 1992). We have found
the use of leading questions to be "necessary" in eliciting
testimony from a child witness. See Rotolo v. U.S., 404 F.2d 316,
317 (5th Cir. 1968) (permitting leading questions with a fifteen-
year-old witness); see also FED. R. EVID. 611(c), Advisory
Committee's note (recognizing that child witnesses represent a
traditional exception to the general rule that leading questions
are undesirable). Other courts have also recognized this
exception, especially in sex abuse cases. See, e.g., United States
v. Longie, 984 F.2d 955, 958-59 (8th Cir. 1993) (finding leading
questions appropriate to elicit testimony from twelve-year-old sex
abuse victim); United States v. Tome, 3 F.3d 342, 352 (10th Cir.
1993) ("This circuit has long recognized the necessity of using
leading questions to elicit testimony from child sex abuse
victims."), rev'd on other grounds, ___U.S.___, 115 S. Ct. 696, 130
L. Ed. 2d 574 (1995). Dumpson, however, argues that the use of
leading questions was not "necessary" under the circumstances of
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this case.4
The record reflects that the judge and jury initially had
difficulty hearing Crystal's testimony because she was extremely
soft-spoken.5 Moreover, Crystal was highly upset and uncomfortable
throughout much of her testimony, during which she was required to
respond to explicit questions concerning a traumatic incident of
sexual assault.6 Under the circumstances, we conclude that the
district court acted well within its discretion in allowing the
prosecutor to use leading questions as necessary to develop the
young victim's testimony. See Rotolo, 404 F.2d at 317 (allowing
leading questions to develop testimony of nervous and upset young
witness); see also Tome, 3 F.3d at 353 (allowing leading questions
to develop testimony of young sex abuse victim who lost her
composure and became reluctant to discuss the abuse incidents).
In particular, Dumpson argues that this case is distinguishable
because Crystal's age))sixteen at the time of trial))did not necessitate the use
of leading questions. Other courts, however, have upheld the use of leading
questions in cases involving victims of similar ages. See, e.g., United States
v. Rossbach, 701 F.2d 713, 718 (8th Cir. 1983) (upholding use of leading
questions with rape and assault victims aged fifteen and seventeen), cert.
denied, 498 U.S. 827, 111 S. Ct. 83, 112 L. Ed. 2d 56 (1990). Although age is
an important criterion in determining whether the use of leading questions is
appropriate, other circumstances should also be taken into consideration. See,
e.g., United States v. Castro-Romero, 964 F.2d 942, 944 (9th Cir. 1992)
(considering both age of victim and nature of testimony regarding sexual abuse).
The district court was also experiencing acoustical problems with the
courtroom microphone. The trial judge took the sound problems into consideration
in denying Dumpson's first two objections to the leading questions. Dumpson's
third objection was lodged after actions had been taken to solve the acoustical
problems, and the judge sustained this objection, noting that the microphone was
"in better shape."
The questioning was halted on at least two occasions to allow Crystal
to stop crying and regain her composure.
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B
Dumpson also claims that the convictions should be overturned
because the prosecutor essentially testified for the victims.
Because Dumpson failed to object at trial, we reverse only if the
excessive use of leading questions amounted to "clear" or "obvious"
error which "affect[ed] substantial rights." Olano, ___U.S. at
___, 113 S. Ct. at 1777-78. We correct a forfeited error only
under exceptional and limited circumstances. See Olano, ___U.S. at
___, 113 S. Ct. at 1779 ("The Court of Appeals should correct a
plain forfeited error affecting substantial rights if the error
seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.") (internal citation and quotations omitted).
Dumpson's claim fails to meet this standard. Because the
prosecutor's extensive use of leading questions was at least
arguably permissible under the well-recognized exception for
questions necessary to develop the testimony of child witnesses, we
find no "clear" or "obvious" error. Moreover, there was
overwhelming evidence presented at trial that Dumpson committed the
sexual offenses, and he does not challenge its sufficiency on
appeal.7 Accordingly, we find that the prosecutor's use of leading
questions could not have seriously affected the fairness or
integrity of Dumpson's trial.
III
Dumpson also contends that the excessive use of leading
Dumpson's challenge to the sufficiency of the evidence on the
kidnapping charges is based solely on the fact that the victims initially agreed
willingly to accompany him.
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questions during the victims' testimony violated his rights under
the Confrontation Clause. We find no merit to this claim. "The
Confrontation Clause of the Sixth Amendment gives the accused the
right 'to be confronted with the witnesses against him.' This has
long been read as securing an adequate opportunity to cross-examine
adverse witnesses." United States v. Owens, 484 U.S. 554, 557, 108
S. Ct. 838, 841, 98 L. Ed. 2d 951 (1988). In this case, all three
victims were physically present on the witness stand and available
for cross-examination. The record reflects that Dumpson exercised
his right under the Confrontation Clause by extensively cross-
examining all three victims.8 See Pennsylvania v. Ritchie, 480
U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40 (1987) (holding
that the Confrontation Clause ensures a criminal defendant's right
to physically face and cross-examine those who testify against
him).
IV
Dumpson next contends that the evidence was insufficient to
support the kidnapping convictions.9 The sole basis for his
sufficiency argument is that all three victims willingly
accompanied him, and that consent is a complete defense to
The record contains approximately 100 pages of defense counsel's
cross-examination of the victims.
Dumpson was charged and convicted under federal law establishing the
offense of kidnapping where an offender "unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts, or carries away and holds for ransom or reward or
otherwise any person . . . within the special maritime and territorial
jurisdiction of the United States." 18 U.S.C. § 1201(a)(2).
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kidnapping.10
We must determine whether a rational trier of fact, when
viewing the evidence in the light most favorable to the Government,
could have found the essential elements of the offense beyond a
reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th
Cir. 1982) (en banc), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L.
Ed. 2d 638 (1983). As one necessary element, a federal kidnapping
charge requires that the victim be an unconsenting person. United
States v. Davis, 19 F.3d 166, 169 (5th Cir. 1994). In this case,
it is undisputed that the victims initially consented to accompany
Dumpson and willingly got into his car when he offered them a ride.
However, the fact that a person originally accompanies someone by
choice does not mean that a "kidnapping" cannot occur at a later
stage. See United States v. Peden, 961 F.2d 517, 522 (5th Cir.)
(concluding that evidence was sufficient to support federal
kidnapping conviction where the victim agreed to accompany
defendant to a restaurant and he instead took her to an isolated
federal tract where he sexually assaulted her), cert. denied,
___U.S.___, 113 S. Ct. 392, 121 L. Ed. 2d 300 (1992); United States
v. McBryar, 553 F.2d 433, 434 (5th Cir.) (upholding kidnapping
conviction where defendant agreed to take victim to one
destination, but then drove in opposite direction and refused her
requests to be let out of the car), cert. denied, 434 U.S. 862, 98
Although Dumpson suggests in his reply brief that the evidence should
be found insufficient because the jury could not hear Crystal's testimony, we
decline to address this argument because it was not presented in his initial
brief. N.L.R.B. v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1342 (5th Cir. 1993).
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S. Ct. 191, 54 L. Ed. 2d 136 (1977); United States v. Eagle
Thunder, 893 F.2d 950, 952 (8th Cir. 1990) (finding sufficient
evidence to support kidnapping where victim initially consented to
accompany defendant, but was later detained despite her requests to
be taken home).
Each of the victims testified that at some point during the
ensuing trip she asked to be let out of the car or taken to her
intended destination, but that Dumpson refused. The victims'
initial consent therefore becomes irrelevant and provides no
defense to the kidnapping that occurred afterwards. We find the
evidence was sufficient to support the kidnapping convictions.
V
Dumpson argues that the district court misapplied the
Sentencing Guidelines in two respects. First, he contends that the
four-level enhancement for "abduction," pursuant to U.S.S.G.
§ 2A3.1(b)(5), was improperly added to his offense level for the
kidnapping charges. Second, Dumpson contends that the district
court erred by applying the two-level enhancement for inflicting
"serious bodily injury" upon two of the victims, pursuant to
U.S.S.G. § 2A3.1(b)(4).11
We review Dumpson's sentence to determine whether the district
court correctly applied the Sentencing Guidelines to factual
findings that are not clearly erroneous. United States v. Montoya-
Ortiz, 7 F.3d 1171, 1179 (5th Cir. 1993). A factual finding is not
Because it was raised for the first time in the reply brief, we will
not consider Dumpson's argument that the district court erred by failing to apply
the rule of lenity. Cal-Maine Farms, Inc., 998 F.2d at 1342.
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clearly erroneous if it is plausible in light of the record viewed
in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564,
573-76, 105 S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518 (1985). Legal
conclusions regarding the application of the Sentencing Guidelines
are reviewed de novo. Montoya-Ortiz, 7 F.3d at 1179.
A
Dumpson contends that he did not "abduct" his victims within
the meaning of the Sentencing Guidelines because they "willingly
accompanied" him and because abduction requires the use of "force."
He argues that the enhancement for "abduction" was not meant to
apply to every "kidnapping." Dumpson relies on the definition of
"abduction" found in the Guidelines:
"Abducted" means that a victim was forced to accompany an
offender to a different location. For example, a bank
robber's forcing a bank teller from the bank into a
getaway car would constitute an abduction.
U.S.S.G. § 1B1.1, note 1(a).12
There is no requirement, however, that the offender must use
physical force in order to "abduct" a victim. The district court
found that an abduction had occurred at the point where Dumpson
refused each victims' requests to be let out of the car or taken to
her destination. This finding is plausible in light of the entire
record. Anderson, 470 U.S. at 573-76, 105 S. Ct. at 1511-12. The
increased penalty for "abduction" is based on the rationale that
the offender's ability to isolate the victim increases the
To the extent that Dumpson relies on the example given in the
definition, we note that these examples are "merely illustrative." U.S.S.G.
§ 1B1.1, comment. note 2.
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likelihood that the victim will be harmed. United States v.
Saknikent, 30 F.3d 1012, 1012 (8th Cir. 1994). Therefore, because
the victims were forced against their will to accompany Dumpson
into the desert, we find that the district court's application of
a four-level increase for "abduction" was not error. See id. at
1012 (holding that the abduction adjustment only requires "force"
necessary to overcome the particular victim's will); see also
United States v. Galloway, 963 F.2d 1388, 1391-92 (10th Cir.)
(holding that it did not constitute "cumulative punishment" to
apply abduction enhancement to the crime of kidnapping for purposes
of sexual abuse), cert. denied, ___U.S.___, 113 S. Ct. 418, 121 L.
Ed. 2d 341 (1992).
B
Dumpson also contends that there was no evidence of "serious
bodily injury" to satisfy the two-level increase to the base
offense level for criminal sexual abuse as to two of the victims.13
"Serious bodily injury" is defined as an "injury involving extreme
physical pain or the impairment of a function of a bodily member,
organ, or mental faculty; or requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation." U.S.S.G.
§ 1B1.1, comment. note 1(j).
There was medical testimony at trial that both victims had
suffered bleeding and lacerations in the vaginal area. The two
victims also testified to their psychological pain following the
The criminal conduct charge in Counts One through Three did not
include a rape and there is no indication that the victim of those counts was
injured.
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sexual assault, including, in one case, an attempted suicide. The
district court found that the victims had "suffered extreme
physical pain at the time of the incident" and an impairment of
their mental faculties, and that they "were emotionally traumatized
in an extraordinary way." These findings are not clearly erroneous
when viewed in light of the entire record, and we therefore hold
that the district court did not err by imposing an enhancement for
serious bodily injury. See United States v. Reed, 26 F.3d 523,
530-31 (5th Cir. 1994) (holding that enhancement for serious bodily
injury may be imposed where the victim suffered post-traumatic
stress syndrome but no corporal injury), cert. denied,___U.S.___,
115 S. Ct. 1116, 130 L. Ed. 2d 1080 (1995).
VI
For the foregoing reasons, we AFFIRM.
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