1

The Honorable Karen E. Schreier, Chief Judge, United States District Court

for the District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-2407

___________

United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the

* District of South Dakota.

Keith L. Wright, *

*

Appellant. *

___________

 Submitted: March 10, 2008

 Filed: August 27, 2008 (Corrected September 19, 2008)

___________

Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

A jury convicted Defendant Keith L. Wright of seven counts of aggravated

sexual abuse of a child under 18 U.S.C. §§ 1153 and 2241(c). The district court1

sentenced Wright to concurrent life terms for each count and ordered him to pay a fine

of $25,000. Wright appeals numerous issues from his trial and sentencing. We

affirm. 
-2-

I. Background

Wright lived with his mother, Rena Wright, Rena’s three other biological

children, and several other children of whom Rena was the guardian. When he was

28 years old, Wright was indicted for and convicted of sexually abusing three children

living with Rena. He was indicted for aggravated sexual abuse of T.L.C. “on or about

between” November 6, 1997, to November 5, 2000; aggravated sexual abuse of J.L.C.

“on or about between” December 9, 1994, to December 8, 2001; and attempted

aggravated sexual abuse of J.L.W. “on or about between” November 21, 1998, to

November 20, 1999.

A. T.L.C.

T.L.C. was placed with Rena when T.L.C. was about six years old, after her

mother died. She lived with Rena for approximately eleven years. Wright sexually

abused T.L.C. during this time. She first reported the abuse to Peri Strain, an advisor

at her school. Strain filed a report, and the government began investigating.

At the time of Wright’s trial, T.L.C. was eighteen years old. T.L.C. testified

that before the abuse, she considered Wright her brother. She testified that Wright

began abusing her when she was about six or seven years old. Wright initiated the

first instance of abuse when she was watching a movie with her brothers. Wright told

T.L.C. to go into a room with him. Inside the room, Wright penetrated her vagina

with his penis. T.L.C. testified that the abuse continued until she was about twelve

years old, and penis-to-vagina intercourse occurred between twenty and fifty times.

T.L.C. testified that Wright also put his fingers inside her vagina and made her touch

his penis with her hand. Wright was convicted of three counts of aggravated sexual

abuse of T.L.C., each count covering one year between November 1997 and

November 2000. 

B. J.L.C.
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During the course of the investigation regarding Wright’s abuse of T.L.C.,

T.L.C.’s brother, J.L.C., disclosed sexual abuse to Special Agent Oscar Ramirez.

J.L.C. was three years old when he started living with Rena. J.L.C. testified he

thought of Wright as a big brother. When J.L.C. was about five years old, Wright

began abusing him. J.L.C. testified that Wright “would do some . . . nasty stuff to

[him].” Wright “would use his penis and stick it in [J.L.C.’s] butt and nasty stuff like

that.” The abuse occurred “like five or six times” and continued until J.L.C. was

about eleven. J.L.C. “tried to fight it,” but testified he “was just too little.” Wright

gave to J.L.C. “certain stuff and then . . . kept on telling [him] not to tell anybody

about what happened and stuff.” 

J.L.C.’s older brother, T.J.L.C., witnessed Wright abusing J.L.C. when T.J.L.C

was about five or six years old and J.L.C. was about four or five years old. T.J.L.C.

testified: “I saw my brother, my little brother [J.L.C.] stooped over the bed, his pants

and his underwear down to his ankles. Then I saw [Wright] behind him with his pants

pulled down . . . . [Wright] started having sexual intercourse with my little brother.”

T.J.L.C. testified Wright “was forcing his penis in my brother’s butt” and that J.L.C.

was “crying.” At this point, T.J.L.C. went outside and stayed there until Rena got

home. T.J.L.C. testified he told Rena this, but that “she wouldn’t listen.” T.J.L.C.

testified that he witnessed Wright abusing J.L.C. again about one year later. Wright

was convicted of three counts of aggravated sexual abuse of J.L.C. for conduct

occurring roughly between December 1994 and December 2001.

C. J.L.W.

J.L.W. testified she considered Wright to be a big brother. J.L.W. testified that

when she was about six years old, she was in her room playing on the bed when

Wright walked in. Wright was “[b]eing nice . . . and talking nice.” He put his hand

on her leg and tried to pull down her pants. She “tried to yell for help,” but Wright

covered her mouth with his hand. J.L.W. tried to move Wright’s hand. Wright did
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not remove his own clothing or J.L.W.’s clothing. J.L.W. kept yelling for Rena, who

came in and said “don’t.” Wright then got up and left. J.L.W. told Rena what had

happened, but Rena “didn’t believe” her. The jury heard testimony from Agent

Ramirez that Wright told him “he had . . . tried to do things with [J.L.W.].” And that

“nothing happened but that it got close.” Wright was convicted of attempted

aggravated sexual abuse of J.L.W. 

D. Suppression Hearing

Wright moved to suppress statements he made to Agent Ramirez, asserting

Agent Ramirez violated Wright’s Fifth and Sixth Amendment rights. At a hearing on

this motion, Agent Ramirez testified based on his typewritten interview report, which

the district court admitted into evidence. Agent Ramirez created this report based on

his handwritten interview notes. During the hearing, the government asked Agent

Ramirez what time he began interviewing Wright. Agent Ramirez asked whether he

could look at a book containing a notation he made based on his handwritten notes.

This refreshed his recollection as to the time the interview began, which was not

contained in the interview report.

Wright asked to see the interview notes. The government agreed to show

Wright the notation on the book Agent Ramirez was using to refresh his recollection

but objected to producing the handwritten interview notes themselves. The court

“direct[ed] that the journal entries in the book before the witness be provided to

Defense” but denied Wright’s request for the interview notes. The court asked

whether the government “would . . . have an objection if those notes [were] produced

for in camera inspection for the Court to” determine how the information contained

in the notes compared with the interview report. The government objected, and the

court did not require Agent Ramirez’s notes to be given to Wright or the court, stating

that any potential inconsistencies could “be addressed through appropriate

examination.” 
-5-

II. Discussion

A. Subject Matter Jurisdiction—Juvenile Delinquency Act

Wright argues federal courts lack subject matter jurisdiction in this case under

the Juvenile Delinquency Act, which provides that a federal court generally does not

have jurisdiction over “[a] juvenile alleged to have committed an act of juvenile

delinquency.” 18 U.S.C. § 5032. This argument fails, as Wright was indicted when

he was 28 years old, and was thus no longer a “juvenile” within the statute’s

definition. See 18 U.S.C. § 5031 (defining “juvenile” as one “who has not attained

his eighteenth birthday, or for the purpose of proceedings and disposition under this

chapter for an alleged act of juvenile delinquency, a person who has not attained his

twenty-first birthday”); see also United States v. Hoo, 825 F.2d 667, 669–70 (2d Cir.

1987) (“[C]ourts have consistently held that a defendant who is alleged to have

committed a crime before his eighteenth birthday may not invoke the protection of the

Juvenile Delinquency Act if criminal proceedings begin after the defendant reaches

the age of twenty-one.” (citing In re Martin, 788 F.2d 696, 697–98 (11th Cir. 1986);

United States v. Araiza-Valdez, 713 F.2d 430, 432–33 (9th Cir. 1983); and United

States v. Doe, 631 F.2d 110, 112–13 (9th Cir. 1980))).

B. Attempted Aggravated Sexual Abuse Conviction

Wright argues the trial court should have granted a judgment of acquittal on the

attempt charge as to J.L.W. because the evidence was insufficient to establish Wright

performed a substantial step toward any of the four statutory definitions of aggravated

sexual abuse. “In reviewing for sufficiency of the evidence, we view the evidence in

the light most favorable to the verdict, and we will overturn a conviction only if no

reasonable jury could have concluded that the defendant was guilty beyond a

reasonable doubt on each essential element of the charge.” United States v. Kenyon,

481 F.3d 1054, 1067 (8th Cir. 2007) (internal quotation omitted). 
-6-

For the government to establish Wright’s guilt for attempted aggravated sexual

abuse of J.L.W., it must establish that Wright had “an intent to engage in” the sexual

abuse by knowingly attempting to cause J.L.W. to engage in a sexual act and that

Wright committed “conduct constituting a substantial step toward commission of the

substantive offense [that] strongly corroborates [his] criminal intent.” Id. (internal

quotation omitted). The statute defines the substantive offense, a sexual act, as:

(A) contact between the penis and the vulva or the penis and the

anus, and for purposes of this subparagraph contact involving the penis

occurs upon penetration, however, [sic] slight;

(B) contact between the mouth and the penis, the mouth and the

vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening

of another by a hand or finger or by any object, with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person; or

(D) the intentional touching, not through the clothing, of the

genitalia of another person who has not attained the age of 16 years with

an intent to abuse, humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person[.]

18 U.S.C. § 2246(2).

J.L.W. testified Wright tried to pull down her pants. Wright “had his hand on

[J.L.W.’s] leg.” She “tried to yell for help,” but Wright “covered [her] mouth” with

his hand. Wright left the room after Rena came in the room. Both Wright and J.L.W.

were fully clothed. Wright did not stop on his own or when J.L.W. resisted, but only

after Rena discovered him. Additionally, Agent Ramirez testified: “At first I asked

[Wright] if he had done anything with [J.L.W.]. He denied it at first. After further

questioning, he described that he had only tried to do things with [J.L.W.]. And then

he described it as it got close.”
2

This 1991 provision defined “sexual act” as:

(A) contact between the penis and the vulva or the penis and the

anus, and for purposes of this subparagraph contact involving the penis

occurs upon penetration, however, [sic] slight;

(B) contact between the mouth and the penis, the mouth and the

vulva, or the mouth and the anus; or

(C) the penetration, however slight, of the anal or genital opening

-7-

In support of his insufficient-evidence claim, Wright relies on United States v.

Blue Bird, 372 F.3d 989 (8th Cir. 2004), and United States v. Plenty Arrows, 946 F.2d

62 (8th Cir. 1991). We find these cases distinguishable. In Blue Bird, we found that

the evidence was insufficient to show the defendant had taken a substantial step

toward sexual contact, yet we noted that “the fact that [the defendant] desisted and

withdrew when [the alleged victim] said that she was not interested, indicates that [the

defendant] at most merely solicited some kind of sexual contact.” Blue Bird, 372 F.3d

at 993. In the instant case, however, Wright did not withdraw when J.L.W. tried to

yell for help. Unlike the defendant in Blue Bird, Wright only stopped and left when

Rena discovered him. 

In Plenty Arrows, we found that the defendant’s act of placing his penis against

the back of the victim’s buttocks was not a substantial step toward penetrating his

anus. 946 F.2d at 66. The defendant’s act was not of “an unequivocal nature” to

“establish beyond a reasonable doubt that [the defendant] intended to proceed beyond

touching the back of the victim’s behind to penetration, however slight, of the victim’s

anus.” Id. (quotation and alternation omitted). Wright argues that if placing one’s

penis against the buttocks of a victim was not a substantial step in Plenty Arrows, then

his actions in this case cannot constitute a substantial step. We reject this argument

for two reasons. 

First, when Plenty Arrows was decided in 1991, “sexual act” required

penetration or contact with the mouth. Id. at 64; see also § 2245(2) (1991).2

 Today,
of another by a hand or finger or by any object, with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person[.]

18 U.S.C. § 2245(2) (1991).

-8-

however, the term “sexual act” is broader. Penetration is not required, as the

definition of sexual act includes “the intentional touching, not through the clothing,

of the genitalia of another person who has not attained the age of 16 years with an

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person . . . .” 18 U.S.C. § 2246(2)(D). Unlike in Plenty Arrows, the government here

did not need to establish Wright took a substantial step toward penetrating J.L.W.

Wright’s conviction stands if he took a substantial step toward the commission of “the

intentional touching, not through the clothing, of the genitalia of” J.L.W. Id.

Second, not only does the government need to establish less in this case than

it needed to establish in Plenty Arrows, the evidence in this case is greater. Here,

unlike in Plenty Arrows, the defendant said that he had tried to do things with J.L.W.

and that “it got close.” Wright’s statements, along with his acts, allow us to

“determine the actor’s ultimate intent,” which we were unable to do in Plenty Arrows.

946 F.2d at 66. “The chief purpose of the substantial step requirement is to

corroborate the actor’s specific intent to commit the crime,” and J.L.W.’s testimony

along with Wright’s statements that “it got close” establish Wright had the specific

intent to commit the crime. Id. (internal quotations omitted). Wright tried to pull

down J.L.W.’s pants, he put his hand on her leg, he covered her mouth with his hand,

and he admitted that he “tried to do things with” her and that “it got close.” This

evidence is stronger than the evidence in Plenty Arrows, and it is sufficient to

“establish beyond a reasonable doubt that [the defendant] intended to proceed beyond”

his actions to intentionally touching J.L.W.’s genitalia not through the clothing, with

an intent to abuse her or arouse someone. Id.; see 18 U.S.C. 
-9-

§ 2246(2)(D); see also Blue Bird, 372 F.3d at 933 (suggesting that attempting to take

off one’s own pants and passing out on top of a child may be sufficient to establish

attempted sexual assault). 

C. Constructive Amendment

Wright also argues that the indictment was constructively amended. He points

out that the government alleged and produced evidence of between twenty-six and

fifty-six acts of abuse at the grand jury proceedings and trial and that he was only

convicted of six counts of abuse and one count of attempt. Thus, Wright argues, it is

impossible to determine which acts of abuse were the basis for the grand jury’s

indictment and which acts of abuse were the basis for the petit jury’s conviction. As

a result, he argues there is a substantial likelihood he was convicted for acts of abuse

he was not charged with. He argues that because specific acts of abuse were not

identified and because he was not charged with nor convicted of fifty-six counts of

abuse, he can still be charged and convicted of the other acts of abuse he committed

during this time period, and that this violates double jeopardy.

Wright’s constructive-amendment argument fails, as the indictment and jury

instructions are identical in all relevant respects. See United States v. Whirlwind

Soldier, 499 F.3d 862, 870 (8th Cir. 2007) (“A constructive amendment occurs when

the essential elements of the offense as charged in the indictment are altered in such

a manner . . . that the jury is allowed to convict the defendant of an offense different

from or in addition to the offenses charged in the indictment.”). The government

chose to indict Wright of six counts of abuse for the multiple acts of abuse he

committed against specific individuals during specific time periods. The indictment

and the jury instructions did not include specific dates but rather included the same

time ranges, and all the evidence at the grand jury proceeding and trial regarded

multiple acts of abuse that occurred during these time periods. The government can

not again charge or convict Wright of acts of sexual abuse he committed against the
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stated victims during the stated time periods. Thus, double jeopardy concerns are not

implicated. 

In support of his argument, Wright cites a Ninth Circuit case involving a

variance, not a constructive amendment, United States v. Tsinhnahijinnie, 112 F.3d

988 (9th Cir. 1997). The Ninth Circuit found a variance between the indictment and

evidence at trial because the indictment charged the defendant with committing crimes

“between June 1992 and July 1992,” but the evidence at trial was only sufficient to

enable a jury to find crimes occurred in 1994, not 1992. Id. at 989–90. In the instant

case, however, the evidence presented at trial did not differ from the evidence that

supported Wright’s indictment. The evidence presented at trial did not prove facts

“materially different from those alleged in the indictment,” as required for us to find

a variance. Whirlwind Soldier, 499 F.3d at 870 (internal quotation and modification

omitted). Therefore, we find no variance. 

D. Jencks Act 

Wright argues that the government intentionally and in bad faith refused to

comply with the Jencks Act when it refused to turn over Agent Ramirez’s notes. The

Jencks Act, 18 U.S.C. § 3500, “requires the district court, on the motion of the

defendant, to produce any ‘statements’ of a government witness that relate to the

subject matter of the witness’s testimony, after the witness has testified on direct

examination.” United States v. New, 491 F.3d 369, 376 (8th Cir. 2007) (citing 18

U.S.C. § 3500(b)). The Act only applies to “statements,” and it defines “statements”

narrowly. See 18 U.S.C. § 3500(e)(1)–(3). For our purposes, Ramirez’s interview

notes constitute statements only if they were “written statement[s] made by [the

government] witness and signed or otherwise adopted or approved by him.” 18

U.S.C. § 3500(e)(1). 
3

Wright raises a claim of prosecutorial misconduct based on alleged violations

of the Jencks Act, the rule against admission of hearsay testimony, and the prohibition

on leading questions. Wright does not, however, explain how these violations amount

to prosecutorial misconduct. Because we reject Wright’s underlying allegations, we

do not address his claim of prosecutorial misconduct. 

-11-

Wright does not specify how the interview notes constitute a “statement.”

Because his argument is unclear, we first consider whether the Jencks Act requires the

production of any alleged statements made by Wright himself and then whether the

Act requires the production of any alleged statements made by Agent Ramirez. The

Jencks Act does not apply to any statements by Wright himself, as the Act applies

only to “a Government witness or prospective Government witness (other than the

defendant).” 18 U.S.C. §§ 3500(a) (emphasis added). Furthermore, Wright does not

allege he “adopted” the interview notes or that the notes constitute a “verbatim recital”

of his statement, and such an adoption or recital would be necessary for the interview

notes to constitute a “statement” of Wright’s. 18 U.S.C. §§ 3500(e)(1)–(2). 

Additionally, the Jencks Act does not apply to any of the “statements” allegedly

made by Agent Ramirez contained in his notes. Any alleged “statements” by Agent

Ramirez would consist solely of “the agent’s interpretations or impressions,” which

the Supreme Court has held are “not to be produced.” Palermo v. United States, 360

U.S. 343, 353 (1959). 

We thus hold the district court’s failure to hold an in camera review of Agent

Ramirez’s notes from his interview with the defendant was not in clear error. See

New, 491 F.3d at 376 (“We review a district court’s ruling under the Jencks Act for

clear error.”).3

E. Hearsay
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Wright also alleges the district court impermissibly admitted hearsay evidence

on many occasions. We conclude that any error the district court may have committed

is harmless.

i. Witness Testimony

Two witnesses, Peri Strain and Jody Callaway, had conversations with T.L.C.

and testified about the actions they took in response to those conversations.

Specifically, Strain testified that, based on what T.L.C. had told Strain, Strain told

T.L.C. that Strain was a mandatory reporter. Callaway testified that, based on what

T.L.C. had told her, Callaway sought advice from her pastor and reported her

conversation with T.L.C. to the sheriff’s office: “I shared with [an officer] that

[T.L.C.] had been molested for a long time.” Callaway also testified: “I told [the

officer] what [T.L.C.] had told me and then I said that it was her brother Keith

[Wright].” 

The district court admitted their testimony over Wright’s hearsay objections,

and we review the admission of this evidence for abuse of discretion and “revers[e]

only when an improper evidentiary ruling affected the defendant’s substantial rights

or had more than a slight influence on the verdict.” United States v. Shields, 497 F.3d

789, 792 (8th Cir. 2007). We hold that some of the testimony is not hearsay and that

any error the district court may have committed in the admission of hearsay testimony

was harmless.

The witnesses’ testimony about actions they took in response to the

conversations is not hearsay. See United States v. Walker, 636 F.2d 194, 195 (8th Cir.

1980). Callaway’s testimony that she sought advice from her pastor and that she

reported the conversation to the sheriff’s office is thus not hearsay. 
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However, Callaway’s testimony identifying Wright as the perpetrator of the

abuse may constitute inadmissible hearsay. See United States v. Brown, 110 F.3d

605, 609 (8th Cir. 1997) (“We are troubled, however, with the portion of [the

witness’] testimony which explained that an informant identified [the defendant] as

a person [committing the crime].”). While Strain’s and Callaway’s testimony is

admissible if offered to “provide[] the jury with background information as to why the

police began their investigation,” id., we are not wholly convinced the witnesses’

detailed testimony was necessary for background. The testimony was instead likely

offered for the truth of the matter asserted and thus raises hearsay problems. See

United States v. Azure, 845 F.2d 1503, 1507 (8th Cir. 1988) (finding that “[t]he only

possible relevance of [a social worker’s testimony regarding the victim’s out-of-court]

identification of [the defendant] and of the government’s subsequent investigation of

him is that he in fact was the person who abused her” and holding this was

inadmissible hearsay). 

Regardless of whether the evidence was improperly admitted, however, the

admission of Strain’s and Callaway’s testimony constituted harmless error. T.L.C.

herself identified Wright as the perpetrator, and Wright was not asserting T.L.C. had

mistaken his identity. Thus, we find that the admission of alleged hearsay testimony

in this case did not prejudice Wright. See Azure, 845 F.2d at 1507; see also United

States v. Wipf, 397 F.3d 677, 682 (8th Cir. 2005) (noting that the victim’s testimony

regarding sexual abuse “mirrored” the testimony of the witness and thus the witness’

“testimony was merely cumulative and did not likely influence the jury”). 

ii. Victim Testimony

Wright also alleges the district court improperly admitted hearsay evidence

provided by the victims. Wright did not object to the admission of this evidence at

trial, and we review the evidence’s admission for plain error. See United States v.

Carter, 410 F.3d 1017, 1026 (8th Cir. 2005) (noting that the failure to object to
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statements made during closing arguments results in our court reviewing the

statements’ admission for plain error).

Wright alleges T.L.C.’s testimony that she “mention[ed]” the sexual abuse to

Peri Strain is hearsay. T.L.C. testified: “I didn’t tell her about what really happened

to me. I—but I did mention, you know, the abuse and stuff that was going on.”

T.L.C. also responded, “[s]omewhat,” to the question of whether she “talk[ed]

specifically to [Strain] about what had happened.” T.L.C. testified she “talked to

[Agent Ramirez] about it,” and that she told him “[i]t happened often, but it wasn’t

more than I want to say 50 times.” Additionally, T.L.C. testified that she “didn’t say

nothing” to the U.S. Attorney regarding whether the charges should be dropped. 

We hold T.L.C.’s testimony regarding whether conversations occurred is not

hearsay. See Walker, 636 F.2d at 195 (describing a case holding that a witness can

testify as to what he did after talking with an informant, and it is not hearsay).

Furthermore, if we assume without deciding that T.L.C.’s testimony about her

conversation with Agent Ramirez regarding the frequency of abuse was hearsay, its

admission was harmless error. 

J.L.C. also testified about his conversation with Agent Ramirez. During

J.L.C.’s testimony, the government said: “And when you were asked about this by

Oscar Ramirez you also talked about nasty stuff, and then you described what nasty

stuff meant. Can you do that, please[?]” We hold J.L.C.’s testimony defining “nasty

stuff” was not hearsay, as he was not asked to state what he told Agent Ramirez. The

question merely reminded J.L.C. of a previous time he defined the phrase and asked

him to define the phrase then for the court. J.L.C. also read a statement that he gave

to Agent Ramirez describing Wright’s abuse and testified that T.L.C. “would tell me

about it [Wright doing things to T.L.C.] but I never really seen anything.” This

testimony was also cumulative. Wright does not allege T.L.C. was mistaken as to the
-15-

identity of her abuser, and we hold that any error in admitting the evidence was

harmless. 

F. Leading Questions

Wright argues the district court improperly admitted leading questions in

T.L.C.’s direct examination. Wright objected to some of these leading questions, and

this court reviews the admission of these questions for abuse of discretion. Whether

leading questions are permitted “is a matter generally left to the discretion of the trial

judge.” United States v. Anderson, 446 F.3d 870, 876 (8th Cir. 2006).

We find that T.L.C.’s direct examination contained numerous leading questions.

Some of these questions were permissible for the purpose of clarifying vague

testimony. Additionally, regardless of whether the admission of the questions and

answers was an abuse of discretion, their admission constituted harmless error. 

We note first, however, that not all of the allegedly leading questions were, in

fact, leading. Wright objected to the question: “As this was going on, [T.L.C.], did

[Wright] ever say anything to you about . . . reporting it or words to that effect?”

While this question can be answered with yes or no, it is not leading as it does not

suggest its own answer. See De Witt v. Skinner, 232 F. 443, 445 (8th Cir. 1916)

(“The test of a leading question is whether it suggests or indicates the particular

answer desired.”). Thus, the district court did not abuse its discretion in overruling

Wright’s objection. 

Wright also objected to questions asked to clarify T.L.C.’s testimony as to the

frequency and nature of abuse. T.L.C. testified: “I’d be walking—there was this one

time where I was walking and he went and he just grabbed my butt and stuff like that.

And touched me between the legs and just —.” Counsel then asked: “Would he put

his fingers inside of you?” and T.L.C. responded affirmatively. Counsel then asked
-16-

“When I say ‘inside of you,’ I mean would he put his fingers inside your vagina?”

These questions are leading. We generally allow leading questions during the

examination of children who are reluctant to testify. See United States v. Demarrias,

876 F.2d 674, 678 (8th Cir. 1989) (allowing leading questions to be asked of a young

child who “exhibited a reluctance to testify in other forms”). However, T.L.C. was

an adult witness who had not indicated a reluctance to testify. Nevertheless, we find

that the district court did not abuse its discretion by determining that the leading

questions were necessary to clarify T.L.C.’s testimony and to establish the “precise

physiological details of sexual assault,” which was necessary to define the crime.

United States v. Grassrope, 342 F.3d 866, 869 (8th Cir. 2003) (“It is not uncommon

that precise physiological details of sexual assault must be elicited by focused

questioning.”). The district court also did not abuse its discretion in overruling

Wright’s objections to these questions. See Anderson, 446 F.3d at 876 (“Leading

questions generally are not permitted during direct examination, but may be used

where ‘necessary to develop the witness’ testimony.’” (quoting Fed. R. Evid. 611(c))).
4

Specifically, we highlight the following:

Q: And do you recall [Peri Strain] saying something to you like I’m a

mandatory reporter and I’m — 

A: Yes.

Q: “I’m going to have to report it to law enforcement or to the authorities?”

A: Yeah.

Q: Okay. And did basically you end the conversation at that point?

A: Yes.

. . .

Q: . . . And where were you living then [when you had the conversation

with Strain]?

A: Juanita Kilborn’s.

Q: Okay. Did you feel safe at that point?

A: Yes.

Q. Is that in part why you decided to make a disclosure?

A: Yes.

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Wright alleges counsel asked T.L.C. other leading questions,4 but he did not

object to these questions. Thus, we review these questions for plain error and are

“limited to determining if there is an error that is plain and that affects substantial

rights.” United States v. Smith, 378 F.3d 754, 755 (8th Cir. 2004), vacated on other

grounds, Smith v. United States, 543 U.S. 1136 (2005). Even when such an error has

occurred, “we will not exercise our discretion unless the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 756. The

questions at issue were leading; however, we hold that the admission of these

questions was not in plain error. “Even if some of the leading questions were

excessive, [defense counsel] was free to probe the witness on cross-examination, and

we see no substantial and injurious influence on the verdict arising from the manner

in which the examination was conducted.” Anderson, 446 F.3d at 876. 
5

It is not disputed that the alleged abuse of T.L.C. and J.L.W. occurred before

November 1, 2001.

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G. Sentencing

Wright argues the trial court erred in calculating the sentencing guideline range

in three respects. We review the district court’s factual findings for clear error and the

application of the guidelines de novo. United States v. Yah, 500 F.3d 698, 702 (8th

Cir. 2007) (“We review for clear error the district court’s factual findings underlying

the imposition of a sentencing enhancement based on the defendant’s role in the

offense, and examine de novo the application of the Guidelines.” (quotation and

citation omitted)).

i. Applicable Guideline Version

Wright argues the trial court violated the ex post facto clause by applying a

five-level enhancement under U.S. Sentencing Guidelines Manual § 4B1.5. This

section became effective November 1, 2001, and a defendant cannot be sentenced

under this amendment unless he committed a sex crime after November 1, 2001.

Wright alleges he did not engage in criminal activity after this date. Unless the district

court clearly erred in determining Wright committed an offense after November 1,

2001, we will affirm the application of the 2001 enhancement. See Carter, 410 F.3d

at 1027 (“[The defendant] would be entitled to application of the 2000 guidelines if

his last charged offense occurred before November 1, 2001, and the application as a

whole of the 2000 guidelines would have resulted in a lesser sentence.”). 

The district court did not clearly err in finding Wright committed acts of abuse

with J.L.C. after that date.5

 J.L.C. testified that Wright raped him “five or six times,”

starting when he was about five or six years old and continuing “until [J.L.C.] was

about 11.” J.L.C. turned eleven on December 9, 2001. In Carter, we determined that
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the district court did not clearly err in determining an offense occurred after the

effective date based on a victim’s self-contradicting testimony about when sexual

contact occurred. Id. We determined that “[a]lthough [the victim’s] testimony was

equivocal, we cannot conclude that, in the face of such testimony, the district court

clearly erred in determining that the defendant perpetrated at least one of his offenses

after the effective date of § 4B1.5(b)(1).” Id. Likewise, although the evidence in the

instant case was equivocal, J.L.C. testified that the abuse continued until he was about

eleven and that he turned eleven more than a month after the effective date of the

guideline amendment. See id.; cf. United States v. Kilkenny, 493 F.3d 122, 128 (2d

Cir. 2007) (finding an ex post facto violation when “[t]here is no evidence that any

offensive conduct” took place after the effective date of the guideline amendments).

Thus, the district court’s conclusion to apply the five-level enhancement was not

clearly erroneous. 

ii. Sentencing Enhancement for Custody, Care, or Supervisory

Control

Wright argues the district court erred in finding that T.L.C., J.L.C., and J.L.W.

were “in the custody, care, or supervisory control of” Wright, as is required for the

two-level specific offense characteristic enhancement under USSG §2A3.1(b)(3)(A).

According to the comments, this section “is to be construed broadly.” USSG § 2A3.1,

comment. (n.3). The enhancement applies even if the arrangement between the

defendant and the minor is “peripheral or transitory custody,” United States v.

Kenyon, 481 F.3d 1054, 1072 (8th Cir. 2007) (quotation omitted), and it can apply

even if there is no legal relationship between the parties, USSG § 2A3.1 comment.

(n.3).

The district court’s finding that the victims were in Wright’s custody, care, or

supervisory control is not clearly erroneous. Wright lived with the victims. Each of

the victims testified they considered Wright to be a “big brother.” Wright was
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between fourteen and twenty-one years old during the relevant time periods, and the

victims were between four and eleven years old. The victims’ guardian left them

alone in the house with Wright. T.L.C. testified that she was abused when she and her

brothers were left alone with Wright. J.L.C. testified he did not think anyone else was

in the house the first time he was abused. 

The evidence indicates Wright was in control of the victims when their guardian

was not at home. The district court did not clearly err in applying the enhancement.

See United States v. Voice, 200 F.3d 584, 585 (8th Cir. 2000) (finding the district

court did not clearly err in applying the enhancement, as the evidence “included

testimony of the victim’s mother and [the defendant’s] companion that defendant and

his companion were supposed to be babysitting the victim when the abusive contact

occurred”); cf. United States v. Blue, 255 F.3d 609, 614 (8th Cir. 2001) (finding the

district court clearly erred in applying the enhancement when the evidence showed

only that the defendant “was in the bathroom, that the child entered the bathroom, and

that the two were in the bathroom together for a short time” because this evidence

“does not establish custody but only demonstrates proximity”).

iii. Fine

Wright also argues the district court erred in fining Wright $25,000 without

making an assessment of his ability to pay the fine. “It is incorrect for a court to

impose a fine that the defendant has little chance of paying. The defendant has the

burden of proving that he cannot pay the fine.” United States v. Berndt, 86 F.3d 803,

808 (8th Cir. 1996) (internal citation omitted). 

Section 5E1.2(a) of the guidelines provides that “[t]he court shall impose a fine

in all cases, except where the defendant establishes that he is unable to pay and is not

likely to become able to pay any fine.” In determining whether the defendant has
6

The guideline factors used to determine the amount of a fine are: 

(1) the need for the combined sentence to reflect the seriousness of the offense

. . . , to promote respect for the law, to provide just punishment and to afford

adequate deterrence; (2) any evidence presented as to the defendant’s ability to

pay the fine . . . ; (3) the burden that the fine places on the defendant . . . ; (4)

any restitution or reparation that the defendant has made . . . ; (5) any collateral

consequences of conviction . . . ; (6) whether the defendant previously has been

fined for a similar offense; (7) the expected costs to the government . . . ; and

(8) any other pertinent equitable considerations. 

USSG § 5E1.2(d). 

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established his burden, the district court must consider “the [guideline] factors

relevant to the particular case.”6

 Berndt, 86 F.3d at 808.

The court found Wright did “not have the ability to pay interest” and waived

interest payments. The court ordered a fine of $25,000. Defense counsel objected to

the fine, stating Wright “is totally indigent and has no resources whatsoever to pay a

fine.” The presentence report supported this conclusion, stating Wright was

unemployed, has been unemployed most of his life, has no assets, is in debt, and was

living with a friend who was paying the household expenses at the time of his arrest.

However, the court overruled the objection, explaining “[i]n light of the fact that he’s

sentenced to a life sentence and he’ll be eligible for UNICOR and other prison

programs, I believe that he does have the ability to pay a fine in that dollar amount .

. . .” In ordering Wright to pay the fine, the district court considered the defendant’s

ability to pay and thus fined Wright at the low end of the guidelines. We do not find

this was clearly erroneous. See id. (standing standard of review); cf. United States v.

Granados, 962 F.2d 767, 774 (8th Cir. 1992) (finding the district court imposed a fine

based solely on a conclusory statement in the presentence report and remanding for

factual findings).
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III. Conclusion

We affirm the judgment of the district court.

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