Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled 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opinion should not be published. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-50106

(Summary Calendar)

_______________

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 sp ecial 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.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.

-2- 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,

M onica, and Crystal )) were, respectively, sixteen, thirteen, an d

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 lo cation other than where they had requested to go. Each

repeatedly asked to be let out of the car o r 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 ter ms of 500 months on each count to run concurrently.

Dumpson appeals his convictions alleging: (1) that the trial court

improperly allowe d the prosecution to use leading questions; (2)Fo r 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.

-3- that the use of leading questions deprived him of his

constitutiona l right to confront the witnesses; (3) that the

e vidence 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

object ions, we review the district court's actions for abuse of

discretion. 3 U

nited States v. Clinical Leasing Service, Inc.

, 982

F.2d 900, 905 (5t h Cir. 1992). We review the remaining leading

questions for plain error

. See F ED . R. C R IM

. 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.-4-

1995).

A

The use of leading questions during direct examination of a

witness is restric ted to instances where it is "necessary" to

develop the testimony. F E D

. R. E VID

. 611(c). Appellate courts

traditionally have granted great deference to trial courts' rulings

on the use of leading questions pursuant to Rule 611(c). S tine 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. S ee Rotolo v. U.S.

, 404 F.2d 316,

317 (5th Cir. 1968) (permitting leading questions with a fifteenyear-old witness); see also F ED

. R. E VID

. 611(c), Advisory

Committee's note (recognizing that child witnesses represent a

traditional e xception to the general rule that leading questions

are undesirable). Other courts have also recognized this

exception, especially in sex abuse cases. S ee, 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

a buse victim); U

nited States v. Tome

, 3 F.3d 342, 352 (10th Cir.

1993) ("This circuit has long recognized the necessity of using

leading questions to el icit 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 circu mstances ofI n 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. S ee, 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. S ee,

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.

-5- this case. 4

The record reflects that the judge and jury initially had

d ifficulty 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 tr aumatic incident of

sexual assault. 6 Under the circumstances, we conclude that the

district c ourt acted well within its discretion in allowing the

prosecutor to use leading questions as necessar y to develop the

young victim's testimony. S ee 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).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.

-6- B

Dumpson also claims that the convictions should be overturned

because the prosecutor essentially testi f ied 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." O lano

, ___U.S. a t

___, 113 S. Ct. at 1777-78. We correct a forfeited error only

under exceptional and limited circumstances. S ee 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 suffici ency on

appeal. 7 Accordingly, we find that the prosecutor's use of leading

questions could not have seriously af fected the fairness or

integrity of Dumpson's trial.

III

Dumpson also conte nds that the excessive use of leadingThe 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, o r carries away and holds for ransom or reward or

otherwise any person

. . . within the special maritime and terri torial

jurisdiction of the United States." 18 U.S.C. § 1201(a)(2).

-7- 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." U nited 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 e xtensively crossexamining all three victims. 8 S ee 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 physical ly face and cross-examine those who testify against

him).

IV

Dumpson next contends that the evidence was insuff icient to

support the kidnapping convictions. 9 The sole basis for his

sufficiency argument is t hat all three victims willingly

accompanied him, and that consent is a complete defense toAlthough 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 argu ment 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).

-8- kidnapping. 10

We mu st 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

reasonabl e doubt. U nited 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. U nited

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. S ee U

nited States v. Peden , 961 F.2d 517, 522 (5th Cir.)

(concluding that evidence w as 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, 98Because 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.

-9- 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 prov ides 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 t wo-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 Sente ncing Guidelines to factual

findings that are not clearly erroneous. U nited States v. MontoyaOrtiz

, 7 F.3d 1171, 1179 (5th Cir. 1993). A factual finding is notTo 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.

-10- clearly erroneous if it is plausible in light of the record viewed

in its entirety. A nderson 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 ban k 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. A nderson

, 470 U.S. at 573-76, 105 S. Ct. at 1511-12. The

increased penalty for "abductio n" is based on the rationale that

the offender's ability to isolate the vic tim increases theThe criminal conduct charge in Counts One through Three did not

include a rape and there is no indication that the victim of tho se counts was

injured.

-11- likelihood that the victim will be harmed. U nited States v.

Saknikent

, 30 F.3d 1012, 1012 (8th Cir. 1994). Therefore, because

the victims we re forced against their will to accompany Dumpson

into the desert, we find that the district court's application of

a four-le vel increase for "abduction" was not error. S ee 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 (1 0th Cir.)

(holdin g 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 t he 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 w as 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 fo llowing the-12-

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, an d we therefore hold

that the district court did not err by imposing an enhancement for

serious bo dily injury. S ee 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 suffer ed 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.