1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 91-1626

______________________________

UNITED STATES OF AMERICA

(Appellee)

v.

JOHN WILLIAM PEDEN

(Defendant-Appellant)

_________________________________________________________ Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________

( May 12, 1992 )

Before POLITZ, Chief Judge, GARZA, Reynaldo G., and WIENER, Circuit

Judges.

GARZA, Reynaldo G., Circuit Judge:

Defendant appeals his conviction by a jury of kidnapping,

sexual abuse, and sexual abuse of a minor. For the reasons stated

below, we affirm Defendant's conviction in all respects.

PROCEDURAL HISTORY

Appellant John William "Buddy" Peden, age 37, was charged in

a three count indictment with kidnapping, sexual abuse and sexual2

abuse of a minor, in violation of 18 U.S.C. §§ 1241, 2242 and 2243.

At arraignment, Peden entered a plea of not guilty to all charges.

Peden filed a Motion to Dismiss the kidnapping count, which the

district court denied at the close of the Government's case. Peden

filed Motions in limine seeking the exclusion of evidence of prior

convictions and misconduct, which the district court deferred until

trial. The district court ultimately held that Peden's prior

Tennessee conviction for sexual abuse of a girl under age 13 was

admissible under Federal Rules of Evidence 404(b) and 609. Peden

also filed a Motion for an Order requesting the district court to

subpoena the Youth Court and Welfare Department records of the

alleged victim for purposes of an in camera review by the district

court and for authority for Peden's expert to review the same

records. The district court granted this Motion.

After a three day trial, a jury convicted Peden on all three

counts. He filed Motions for a New Trial and Judgments of

Acquittal which the district court denied.

Based on Peden's criminal histor y, the court classified him

under the maximum Category VI with a to tal offense level of 39.

The district court sentenced Peden to 32 years imprisonment on the

kidnapping count, 20 years on the sex abuse count, and 5 years on

the sexual abuse of a minor count, to run concurrently.

FACTS

On Friday, September 21, 1990, Peden, who was living in a

traile r park in Guntown, Mississippi with his sister, Cindy1 To protect the victim's privacy, we refer to her by the

initials "M.N."

2 Appellant's expert psychiatric witness testified that

M.N. had been sexually abused as a young child.

3 The jury was not told that part of his absence was

spent in the Mississippi penitentiary for drug distribution.

4 Peden claims that M.N. told him that her 15th birthday

was in fact her 16th.

3 Jackson, invi ted four young girls who lived in the area for an

evening of skating at a local rink. The girls were Peden's nine

year old niece, a neighbor, also age nine, a six year old who was

celebrating her birthday, and the victim, M.N., 1 who had turned 15

the previous Sunday.

M.N. stood four feet ten inches tall and weighed 107 pounds.

While Peden claimed that he thought that she was 16, he admitted at

trial that she did not look that old. M.N., who had a history of

neglect by her alcoholic mother, was under the foster care of a

distant relative, Earl Coggins, and hi s wife. 2 Coggins owned the

trailer park where Peden's sister resided.

Peden had grown up in the area, but had lived away for several

years. 3 Peden moved in with his sister two months before the

incident in q uestion. For a few weeks before the skating party,

Coggins had employed Peden on a roofing job at th e trailer park.

During that time, Peden developed a friendly rapport with M.N. 4

On the afternoon of Friday, S eptember 21, Coggins at first

refused to let M.N. attend the skating party. Peden, however,

telephoned Coggins and convinced him to allow M.N. to go. Upon

arrival at the rink, the younger girls went in, but M.N. remained5 According to Peden, they kissed and petted for ten

minutes.

6 According to Peden, they did not stop because M.N. said

that she was not hungry.

7 Peden admits to having sex with M.N., but claims it was

upon her initiative.

8 The testimony of M.N., who claimed not to have been at

home during the phone call, conflicts with the government's

version of the events in this respect.

4 behind with Peden to search for money she had lost. 5

About an hour later, Peden invited M.N. to accompany him to a

Wendy's fast food establishment. M.N. accepted, despite the fact

that her father had admonished her not to leave the rink. When

they reac hed Wendy's, Peden did not stop the vehicle. When M.N.

asked why they were not stopping, Peden answered "what do you think

I planned thi s for?" 6 Peden then drove M.N. up to an area of

federal land called the Natchez Trace. According to M.N., he

grabbed her roughly by the wrists, ordered her to remove her pants

and underwear, climb on top of him and have sex with him. 7 After

ejaculating inside her, Peden dro ve M.N. back to the rink. They

had been gone about half an hour.

M.N. did not speak of the rape to anyone for a few days. In

the meantime, Coggins discovered that Peden was having an affair

with Arlinda Collier, Coggins' stepson's wife. M.N. overheard

Coggins telling his wife, Shirley, about it. M.N. began crying and

related the facts to Coggins. 8 On October 5th, Coggins reported

the rape to M.N.'s caseworker, Myrtle Clark.5 ANALYSIS

Peden argues that the district court erred in admitting

evidence of a prior conviction and in refusing to admit into

evidence M.N.'s Welfare and Youth Court records. Moreover, Peden

contends that the district court erred in refusing to quash the

kidnapping count. Finally, Peden maintains th at the evidence was

insufficient to convict and that therefore the district court erred

in denying his Motions to Acquit. We are unconvinced by Peden's

arguments.

I. The District Court did not Err in Admitting Evidence of Peden's

Prior Tennessee Conviction of Aggravated Sexual Battery.

Peden was convicte d on May 1, 1990 of aggravated sexual

assault in Tennessee. The district court allowed the conviction in

as evidence under Section 404(b) of the Federal Rule of Evidence,

which states:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

The conviction arose from a confession that Peden had fondled

a child under the age of thirteen who had been briefly left in his

care by a girlfriend. In U nite d States v. Beechum , 582 F.2d 898

(5t h Cir. 1978) ( e n banc ), cert. denied

, 440 U.S. 920 (1979), we

dealt exhaustively wit h the complicated problem of admission of

extrinsic evidence under this Rule. The drafters of Rule 404(b)

recognized, as common law courts have long recognized, that6

admission of prior wrongful acts simply to show the defendant's bad

character, notwithstanding that one possessed of a bad character is

more likely to commit a crime than one who is not, is likely to

prejudice the jury and blind it to th e real issue of whether the

defendant is guilty of the crime charged. For example, the jury

may feel unsure that the government has proven its case, but decide

that the defendant is an evil person who belongs in prison anyway.

The jury may wish to punish the defendant for the prior act, even

if they are unconvinced that he committed the act charged.

Moreover, the jury may be unconvinced that the defendant committed

either act, but that he more than likely committed at least one of

them and should be punished.

Due to the dangers of admission of evidence of prior wrongs,

courts must e ngage in a two-step process: (1) The extrinsic act

evidence must be relevant to an issue other than the defendant's

character, and (2) the evidence must possess probative value that

is not substa ntially outweighed by the danger it presents of

"unfair prejudice, confusion of the issues, or misleading the jury,

or by consideration of undue delay, waste of time, or needless

presentation of cumulative evidence." Beechum , 582 F.2d at 911.

Peden argues that the prior conviction is irrelevant, despite

its close proximity in time to the charged offense. According to

Section 39-13-504 (a) of the Tennessee Code, "[a]ggravated sexual

battery is unlawful sexual contact with a victim by the defendant

or the defendant by a victim accompanied by any of the

circumstances listed in § 39-13-502(a)." While some of the listed9 According to this statute:

Whoever, in the special maritime and territorial

jurisdiction of the United States or in a Federal prison,

knowingly--

(1) causes another person to engage in a sexual act by

threatening or placing that other person in fear (other

than by threatening or placing that other person in

fear that any person will be subjected to death,

serious bodily injury, or kidnaping); or

(2) engages in a sexual act with another person if that

other person is--

(A) incapable of appraising the nature of the

conduct; or

(b) physically incapable of declining

participation in, or communicating unwillingness

to engage in, that sexual act.

...

7 circumstances involve force and the threat thereof, one o f those

circumstances is that "[t]he victim is less than thirteen (13)

years of age."

Peden argues that this is not relevant to his intent as to the

charge under 18 U.S.C. § 2242 9 because, Peden argues, that statute

requires the use of force or the threat thereof. We do not agree,

as in the Tennessee statute, that the federal statute includes

provisions regarding those incapable of resisting or those

incapable of appraising the nature of the act.

In addition, Peden argues that the district court improperly

admitted the Tennessee conviction in that the government claimed

that it proffered the evidence to establish Peden's intent

notw ithstanding that Peden admitted to having sex with M.N.

Peden's argument lacks merit. The Tennessee conviction goes to his8

intent to take advantage of one incapable of resisting or unable to

appreciate the act, as well as his knowledge that young children

are easily victimized. We note that family friends testified that

M.N. was a "slow" child who acted young for her age. Finally, we

note the similarity between the Tennessee facts and those of the

case before us. In both cases, Peden had worked to gain the trust

of those who left him in charge of young girls. In both cases, one

of the girls present was having a birthday.

Regarding the second part of the Beechum test, we do not

believe that the dist rict court abused its discretion in

determining that the probative value of the evidence outweighed its

potentially prejudicial effect. I n reviewing Rule 403 findings, we

give " great deference to the court's informed judgment and will

reverse only after a clear showing of prejudicial abuse of

discretion." United States v. Rocha , 916 F.2d 219, 241 (5th Cir.

1990), cert. denied sub nom Hinojosa v. United States

, 111 S.Ct.

2057 (1991).

We have noted that the danger th at the jury will punish the

defendant for the extrinsic offense rather than judge his guilt or

innocence of the charged offense "is particularly great where ...

the extrinsic activity was not the subject of a conviction..."

Beechum

, 582 F.2d at 914 . The danger is not so great where, as

here, there was a conviction and the jury is less likely to take it

upon themselves to punish the accused for the extrinsic act.

Finally, Peden claims that the district court erred by failing

to make an on-the-record evaluation of its findings on the question9

of the balance between the probative value of the extrinsic

evidence as o pposed to its potentially prejudicial effect as

required by United States v. Robinson

, 700 F.2d 205, 213 (5th Cir.

1983). This contention is without merit. The district court made

explicit findings, citing cases from both this and other Circuits,

as well as law review commentary. Record vols. IV, 270-73; V, 472.

No remand is necessary for us to determine that the district court

did not abuse its discretion.

II. T he District Court did not Err in Refusing to Admit into

Evidence M.N.'s Youth Court and Welfare Files

.

Prior to trial, Peden moved for in camera review of M.N.'s

records on file with the Mississippi Department of Human Services.

In response, the district court stated:

I have examined carefully the records from the Lee County

Welfare Department and the Lee County Youth Court. I'm

of the opinion that there's nothing in these re cords

that's admissible evidence; however, I feel t hat the

expert's for both the government and the defendant should

hav e access to those Youth Court records. Now, that's

something that's governed very strictly by state law, the

accessibility to those records. And I want to see that

the privileges are adhered to as much as possible, at the

same time be fair to both parties. What I suggest is

that you have your experts just come here in my chambers

and I will make these Youth Court records available to

both of them here in chambers. Because I think that

there are some documents in that file that are

categorized as the type of data or information that

experts in this type of case might rely upon, although I

don't think there's anything that's admissible under Rule

-- partic ularly under Rule 412 of the Federal Rules of

Evidence. However, I feel that these experts should have

access to this information.

Ped en claims that the records should have been admitted

because it "is evident from the record [that] the District Court10

found information which was clearly material to the defense of the

charges." Defendant's Brief at 22. We cannot read anything of the

kind into the district court's statement. The statement indicates

quite the opposite.

Moreover, Peden's expert revie wed the file and reported its

contents to Peden's counsel, who made use of it in crossexamination. Peden's counsel never, however, made a proffer of

evidence under Rule 412(c). Even now, Peden does not indicate what

parts of the records his expert indicated would be relevant and

therefore possibly admissible under Rule 412. We conclude that the

district cour t did not abuse its discretion in denying

admissibility of these highly sensitive records. S ee United States

v. Acosta , 763 F.2d 671, 693 (5th Cir.), c ert. denied sub nom

Weempe v. United States , 474 U.S. 863 (1985).

III. T he District Court did not Err in Refusing to Quash the

Kidnapping Count.

Peden argues that the district court erred as a matter of law

in denying his motion to quash the kidnapping count under 18

U.S.C.A. § 1201. Peden relies on Government of Virgin Islands v.

Berry

, 604 F.2d 221 (3d Cir. 1979), in which the Third Circuit, in

an opinion construing the Virgin Islands kidnapping statute, which

is similar to the statute at issue, reversed defendants' conviction

on the kidnapping count because what really occurred was simply a

robbery. In that case, friends of the victim who had given him

marijuana, which he had sold, demanded that he return the sale10 18 U.S.C.A. § 1201 provides:

(a) Whoever unlawfully seizes, confines, inveigles,

decoys, kidnaps, abducts, or carries away and holds for

ransom or reward or otherwise any person, ... when --

(2) any such act against the person is done within the

special maritime and territorial jurisdiction of the

United States; ... shall be punished by imprisonment

for any term of years or for life.

11 But see United States v. Hughes , 716 F.2d 234, 239 (4th

Cir. 1983)("a kidnapping victim who accepted a ride from someone

who misled her into believing that she would be taken to her

desired destination was 'inveigled' or 'decoyed' within the

meaning of the federal kidnapping statute.").

11 proceeds. When the victim could not return all of the money, they

drove him onto a secluded road, telling him that they were calling

upon another friend and would drive him home afterwards. Instead,

they stopped at a beach, whereupon the "kidnappers" told the victim

to remove his clothes and go for a swim. The kidnappers then drove

off with the victim's clothes and wallet, tel ling him that if he

did not have the money by the next morning, he would be killed.

Id. at 222-23.

As the Third Circ uit noted, both the Virgin Islands statute

and the federal statute at issue make it unlawful to "inveigle"

someone to travel for the inveigler's unlawful purpose. 10 Taken

literally, the victim in Berry was "inveigled" because he was taken

to the beach on false pretenses. I d. at 225. The victim, however,

was not aware that he was detained until about the time that the

robbery took place. 11 The Court found that four factors should be

used in determining whether kidnapping should be included above and

beyond the offense which was the obje ct of said "kidnapping."

These factors are:12 Courts must also avoid multiplicity in sentencing. For

a particularly well reasoned case in this regard, see United

States v. Mikalajunas , 936 F.2d 153 (2d Cir. 1991)(district court

erred in enhancing offense level on the basis that the defendant

restrained the victim while stabbing him, since stabbing

12 (1) The duration of the detention or asportation; (2)

whether the detention or asportation occurred during the

c ommission of a separate offense; (3) whether the

detention or as portation which occurred is inherent in

the separate offense; and (4) whether the asportation or

detention created a significant danger to the victim

independent of that posed by the separate offense.

Id. at 227.

We find it unnecessary to decide whether to adopt the Berry

test for we find that, even if we did adopt it, the kid napping

charge in the case before us survives the test. Unlike the facts

of Berry , M.N. was aware that Peden was not taking her to Wendy's

for some time prior to the actual rape. Moreover, the asportation

and detention went beyond that necessarily inherent in rape. As

the government stated i n oral argument, there would be no

kidnapping if, for example, Peden had merely taken M.N. off to the

bathroom at the skating rink and had raped her there. Finally,

M.N. testified that she was in great fear of harm from Peden after

the rape. She stated that after he raped her, he opened the glove

compartment in an unsuccessful search for "something bad." We

certainly cannot say that M.N.'s fear was unreasonable.

We do not mean to discount the danger of multiplicity. Courts

must always be careful to avoid convicting a defendant for a crime

which is in effect a necessary element of another crime for which

the defendant has also been convicted. S ee United States v.

Lemons , 941 F.2d 309 (5th Cir. 1991). 1 2 For the reasons statednecessarily involves some restraint).

13 above, however, we do not believe that such is the case here.

IV. The Evidence Sufficed to Convict Peden on All Counts.

Peden, claiming that the evidence was insufficient for a

rational jury to convict him, argues that the district court erred

denying his motions to acquit on all counts. We find his arguments

completely lacking in merit.

When presented with a claim that the evidence did not suffice

to support a criminal conviction, we review the verdict of the jury

to determine whether, viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have

found the essential elements of the conviction beyond a reasonable

doubt. U nited States v. Carrion-Caliz

, 944 F.2d 220, 224 (5th Cir.

1991), cert. denied , 118 L.Ed.2d 217 (1992).

Regarding the kidnapping charge, M.N. testified that she would

not have left the skating rink with Peden had she known that they

were not going to Wendy's. She testified that she felt that she

could not get away. As Peden himself admits to having sex with

her, the jury could certainly have found that sexual gratification

was Peden's object in the asportation.

Regarding the charge of sexual abuse, there is no question

that Peden had sex with M.N. M.N. testified that she was afraid of

Peden, which the jury could have easily bel ieved as Peden is a

large man. Moreover, the jury was justified in believing the

testimony of the prosecut ion's expert witness to the effect that14

M.N. was incapable of declining or communicating unwillingness to

Peden's forceful requests even if she were unwilling. Peden claims

that M. N. was a mature girl who could take care of herself,

contending that this is shown by Coggins' willingness to allow her

to go on interstate trips with truck drivers. What Coggins in fact

stated was that he let M.N. travel on a coupl e of occasions with

his brother-in-law. Moreover, Peden claims that he is exonerated

because M.N. stated that she felt partly responsible for the rape.

Despite pressing on cross-examination, however, Peden's counsel

failed to elicit any reason why M.N. felt responsible. The jury

was certainly justified in concluding that guilt feelings

experienced by a violated teenager do not prove that the victim was

responsible for the crime.

Finally, in regards to the charge of sexual abuse of a minor,

Peden argues that the jury could not have reasonably believed that

Peden believed that M.N. was younger than 16. This contention is

frivolous. M.N. denied Peden's claim that she told him that she

was 16; even Peden admitted that M.N. did not look 16.

CONCLUSIONS

We conclude that the district court properly admitted evidence

of the Tennessee conviction and did not abuse its discretion in

refusing to admit the Welfare and Youth Court records. Nor did the

district court err in refusing to quash the kidnapping count or in

denying Peden's Motions to Acquit. Therefore, the judgment of the

district court is15

AFFIRMED.