                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-2083
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                           Christopher Michael Strong, Sr.

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                            Submitted: February 11, 2016
                               Filed: June 27, 2016
                                  ____________

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

       Christopher Strong was convicted of aggravated sexual abuse for assaulting his
girlfriend, Fawnda Parkhurst, and forcing her to have sex with him over the course
of a three-day period, during which he held her against her will. Prior to trial, Strong
moved in limine to exclude evidence of a prior sexual assault he committed against
his former wife. The district court1 admitted the evidence under Federal Rule of
Evidence 413. Also prior to trial, Strong provided adequate notice of his intent to call
an accident reconstructionist, Daniel Lofgren (the expert). At trial, however, the
judge excluded the expert's testimony. Strong was sentenced to 360 months in prison,
which included an enhancement for abduction and an upward adjustment for physical
restraint. For the reasons discussed below, we affirm.

I.    BACKGROUND

        Strong and Parkhurst began dating in November 2013. The couple lived
together with Strong's father on the Red Lake Indian Reservation in northern
Minnesota. Strong quickly became controlling and physically abusive. Between June
6 and June 8, 2014, Strong forced Parkhurst to remain in their home confined to the
bedroom, where he then beat her, raped her, and threatened to kill her. Parkhurst
testified that when she tried to leave, Strong grabbed her by her hair and threw her to
the floor. She had bite marks and bruises all over her body. Because it was
graduation weekend, there were numerous visitors to the Strong house, but Parkhurst
was confined in the bedroom.

       On June 8, 2014, Parkhurst escaped while Strong was in the bathroom. She ran
out of the house, but Strong caught up to her. He grabbed her and began dragging her
back to the house. Strong then pushed her in front of a moving car on the highway,
and Parkhurst was severely injured. She had a compound fracture to her leg. The
driver that hit her did not stop, but a passerby, Carla Martin, stopped to render aid.
Parkhurst crawled into Martin's car; Strong also joined Parkhurst in the backseat.
Red Lake Police Department Criminal Investigator Paul Smith met Parkhurst at the
hospital and assisted medical staff in bringing her into the emergency room. She told


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                          -2-
Smith that Strong had pushed her in front of the car and testified that she started
telling another officer, Alexandra Dow, about the sexual assault. Dow did not recall
Parkhurst mentioning the sexual assault but did remember Parkhurst telling her about
the events leading up to the crash. Strong was then arrested, and Parkhurst was
airlifted to a hospital in Fargo, North Dakota, where she was rushed into surgery for
her broken leg. Because of the emergency surgery, there was no time for a Sexual
Assault Nurse Exam (SANE).

      Strong was indicted and charged with aggravated sexual abuse, kidnapping,
assault resulting in serious bodily injury, and strangulation. Prior to trial, Strong
moved in limine to exclude evidence of a prior sexual assault on his then-wife, which
the government intended to offer under Federal Rule of Evidence 413. In 2009,
Strong pled guilty to assault resulting in serious bodily injury after he brutally
attacked and sexually assaulted his wife, Clarissa Smith. The 2009 case is very
similar to this case. Both victims were romantically involved with Strong, subjected
to controlling behavior, sexually assaulted in the same fashion, and held captive for
several days. Strong argued that admission of evidence of the 2009 assault was
highly likely to unfairly prejudice the non-sexual-assault charges in this matter. To
prevent such prejudicial spillover, the district court severed the aggravated-sexual-
abuse count, which is the sole proceeding on appeal, and allowed evidence regarding
the 2009 assault.

       Prior to trial, Strong provided adequate, timely notice of his intent to call the
expert who planned to testify that "it is not possible to determine whether or not the
alleged victim was pushed in front of a moving vehicle prior to being struck by the
vehicle." At trial, the district court called a sidebar, which was not recorded. The
judge then excluded the expert's testimony for two reasons: (1) because the testimony
would not have been helpful to the jury, and (2) because the court considered the
testimony extrinsic evidence offered to impeach Parkhurst's testimony that Strong
pushed her in front of the car that struck her.

                                          -3-
       The jury found Strong guilty of aggravated sexual abuse on December 18,
2014. The Presentence Report (PSR) recommended a total offense level of 40 based
on the following: a base offense level of 30 under United States Sentencing Guideline
(U.S.S.G.) § 2A3.1(a)(2) for criminal sexual abuse; a 4-level specific-offense-
characteristic enhancement for permanent or life-threatening bodily injury pursuant
to U.S.S.G. § 2A3.1(b)(4); a 4-level specific-offense-characteristic enhancement for
abduction of the victim pursuant to U.S.S.G. § 2A3.1(b)(5); and a 2-level upward
adjustment for physical restraint pursuant to U.S.S.G. § 3A1.3. The PSR noted that
Strong had a criminal history category of III. The recommended Guidelines range
was 360 months to life imprisonment. At sentencing on May 7, 2015, Strong
objected to the 4-level enhancement for abduction and the 2-level adjustment for
physical restraint, arguing that it was impermissible double counting. The district
court overruled Strong's objections and sentenced him to 360 months' imprisonment.

       Strong now appeals arguing that the district court (1) wrongly refused to curtail
the introduction of prior sexual-assault evidence, (2) wrongly excluded his expert
witness's accident reconstruction testimony, and (3) erred when it simultaneously
applied sentencing enhancements for abduction and physical restraint because the
enhancements were allegedly based on the same conduct, which constitutes
impermissible double counting.

II.   DISCUSSION

      A.     Prior Sexual Assault Under Rule 413

      Strong argues that the district court wrongly refused to curtail the introduction
of evidence of his prior sexual assault offered under Federal Rule of Evidence 413,
which was unfairly prejudicial, and failed to properly apply Federal Rule of Evidence
403, which he claims would have resulted in the exclusion of evidence of the 2009

                                          -4-
assault. We disagree. This court reviews evidentiary rulings for abuse of discretion.
United States v. Crawford, 413 F.3d 873, 875-76 (8th Cir. 2005). We will "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. Espinoza, 684
F.3d 766, 778 (8th Cir. 2012) (quoting United States v. Faulkner, 636 F.3d 1009,
1017 (8th Cir. 2011)).

         Rule 413 states, "In a criminal case in which a defendant is accused of a sexual
assault, the court may admit evidence that the defendant committed any other sexual
assault. The evidence may be considered on any matter to which it is relevant." Fed.
R. Evid. 413(a). The rule allows the jury to consider the defendant's propensity to
commit sexual crimes. Congress created this rule to encourage the prosecution of
sexual offenders. United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998).
Without probative evidence of prior sexual assaults, "credibility determinations . . .
'would otherwise become unresolved swearing matches.'" Id. (quoting 140 Cong.
Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). Thus, "there is
'strong legislative judgment that evidence of prior sexual offenses should ordinarily
be admissible.'" Crawford, 413 F.3d at 876 (quoting United States v. LeCompte, 131
F.3d 767, 769 (8th Cir. 1997)). Nonetheless, Federal Rule of Evidence 403 should
also be considered to ensure that the "probative value [of the prior sexual assault is]
not . . . substantially outweighed by the danger of unfair prejudice." United States v.
Hollow Horn, 523 F.3d 882, 888 (8th Cir. 2008). "Federal Rule 403 . . . defines
unfair prejudice as an undue tendency to suggest . . . a decision on an improper
basis[,] commonly, though not necessarily, an emotional one . . . ." Mound, 149 F.3d
at 802 (alterations in original).

       Here, evidence of the 2009 assault admitted at trial was not unfettered. The
entire Rule 413 testimony is summed up in approximately twenty-one pages of a 318-
page trial transcript. The FBI agent involved in the 2009 assault case briefly
described the assault, the investigation, and the victim's physical condition, using

                                          -5-
photographs from the investigation to support his testimony. The victim, Clarissa
Smith, also testified, but her testimony was cursory and unadorned. Strong argues
that the district court allowed this evidence to "take over the trial" and states that this
case is similar to United States v. Forcelle, where this court found that the evidence
of a prior crime was improperly admitted under Rule 404. 86 F.3d 838, 842-43 (8th
Cir. 1996). Forcelle was convicted of one count of mail fraud and six counts of
interstate transportation of monies obtained by fraud. Id. at 839. To support the
claims, the government offered evidence that the defendant previously stole platinum
from his employer. Id. at 840. This case is not like Forcelle. The 2009 assault
offered here was offered under Rule 413, not Rule 404.2 Moreover, Rule 413
supersedes Rule 404's prohibition against character evidence. United States v. Gabe,
237 F.3d 954, 959 (8th Cir. 2001) (holding that Rule 413 evidence can be considered
on any matter, including propensity). This case is more similar to Hollow Horn
where we allowed a prior victim "to testify pursuant to Federal Rule of Evidence 413,
that [the defendant] had raped her in 1988." 523 F.3d at 887. The court determined
that the "testimony [was] prejudicial to [the defendant] for the same reason it [was]
probative–it tend[ed] to prove his propensity to commit sexual assaults," which Rule
413 allows. Id. at 888. Although the testimony was prejudicial, it was not unfairly
prejudicial. Id.




       2
           Federal Rule of Evidence 404(b) provides:

       Evidence of a crime, wrong, or other act is not admissible to prove a
       person's character in order to show that on a particular occasion the
       person acted in accordance with the character. This evidence may be
       admissible for another purpose, such as proving motive, opportunity,
       intent, preparation, plan, knowledge, identity, absence of mistake, or
       lack of accident.

Fed. R. Evid. 404(b).

                                           -6-
        The district court also properly conducted Rule 403 balancing before allowing
the prior assault evidence at trial. "The court may exclude evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence." Fed. R. Evid. 403. In arguing there was no Rule 403
balancing performed in this case, Strong fails to acknowledge the extensive pretrial
litigation. Strong filed a motion in limine and during the status conference, argued
that the evidence should be excluded. The court took the issue under advisement and
ruled on Strong's motion at the pretrial conference. The court specifically recognized
the possibility that the Rule 413 evidence could spill over into the non-sexual-assault
offenses and thus decided to sever the aggravated-sexual-abuse count. Strong argues
for the first time on appeal that the court should have fashioned a different remedy,
such as limiting the scope or excluding the photos. The district court took reasonable
action in severing the cases and in doing so, did not abuse its discretion. Rule 413
evidence is always prejudicial, but Rule 403 only prevents unfairly prejudicial
evidence. Gabe, 237 F.3d at 960. Here, there was no unfair prejudice other than the
issue of spillover, which the court's decision to sever resolved. The district court
further limited the alleged danger of the prior assault evidence by reminding the jury
that although it could consider the evidence for any relevant matter, it could not
convict Strong merely because he may have committed similar acts in the past. Thus,
the district court did not abuse its discretion when it allowed evidence of Strong's
2009 assault conviction to be presented at trial.

      B.     Expert Testimony

       Strong argues that the district court erred when it prohibited his expert from
testifying at trial in regards to Parkhurst being struck by the car. We disagree. The
district court excluded the expert's testimony for two reasons: (1) because the
testimony would not have been helpful to the jury, and (2) because the court
considered the evidence extrinsic evidence offered to impeach Parkhurst's testimony

                                         -7-
that Strong pushed her in front of the car that struck her. "The exclusion of expert
testimony is a matter committed to the sound judicial discretion of the trial judge, and
we will reverse only for an abuse of that discretion." United States v. Kime, 99 F.3d
870, 883 (8th Cir. 1996).

        "Criminal defendants have a fundamental right to present the testimony of
witnesses in their defense . . . ." United States v. Turning Bear, 357 F.3d 730, 733
(8th Cir. 2004). However, there is no absolute right for criminal defendants to call
every witness. Richardson v. Bowersox, 188 F.3d 973, 980 (8th Cir. 1999). A
defendant's right to present witness testimony is limited by "other legitimate interests
in the criminal trial process." United States v. Scheffer, 523 U.S. 303, 308 (1998)
(quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). Federal Rule of Evidence 702
states:

      A witness who is qualified as an expert by knowledge, skill, experience,
      training, or education may testify in the form of an opinion or otherwise
      if: (a) the expert's scientific, technical, or other specialized knowledge
      will help the trier of fact to understand the evidence or to determine a
      fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
      testimony is the product of reliable principles and methods; and (d) the
      expert has reliably applied the principles and methods to the facts of the
      case.

Fed. R. Evid. 702. Even when the requirements of Rule 702 are met, however, "[t]he
court may exclude [the] evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid.
403. The district court has "broad discretion" to determine the reliability of expert
testimony and conduct Rule 403 balancing. Kime, 99 F.3d at 883 (quoting United
States v. Blade, 811 F.2d 461, 465 (8th Cir. 1987)).



                                           -8-
        Strong's expert-witness testimony was properly excluded for several reasons.
First, it was not helpful as required by Rule 702. The expert intended to testify that
it was impossible to determine if Parkhurst was actually pushed in front of the car.
This is an aggravated sexual abuse case; thus, it is irrelevant whether Strong pushed
Parkhurst or whether she was simply running from Strong when she was hit. The
only issue is whether Strong sexually abused her. Evidence of the crash was included
in this case to complete the story of the three-day assault. "A jury is entitled to know
the circumstances and background of a criminal charge. It cannot be expected to
make its decisions in a void–without knowledge of the time, place, and circumstances
of the acts which form the basis of the charge." United States v. Moore, 735 F.2d
289, 292 (8th Cir. 1984). Evidence of the crash was also offered to explain the lack
of forensic evidence in this case, specifically, why no SANE was performed at the
hospital. When Parkhurst arrived at the hospital she was immediately rushed into
emergency surgery for the compound fracture in her leg.

       Second, although not discussed by the district court, Federal Rule of Evidence
403 weighs against including the expert testimony in this case. Evidence about how
Parkhurst ended up in front of the car has minimal probative value. The government
presented evidence that Strong kept Parkhurst captive for three days, beat her,
sexually assaulted her, and threatened her life. When she finally escaped, she was hit
by a car. Whether Strong pushed her was relevant, as mentioned above, to complete
the story and explain the lack of evidence; but because Strong was on trial only for
sexual abuse, the relevance was minimal. Expert testimony on such a small point that
was not an element of the crime was not necessary.

      Strong suggests that the evidence should have been admitted because it
contradicted Parkhurst's testimony. However, Strong's attorney properly cross-
examined Parkhurst, raised questions about her motive and credibility, and introduced
evidence of a prior civil judgment for fraud. The defense also provided testimony of
several witnesses that contradicted Parkhurst's testimony about being confined to the

                                          -9-
bedroom. Most importantly, an expert opinion offered for the purpose of bolstering
impeachment is not helpful to the jury and is not a proper basis for admission of
expert testimony. See Fed. R. Evid. 702.

       The district court suggested that the expert testimony was excludable under
Federal Rule of Evidence 608(b), which states that "extrinsic evidence is not
admissible to prove specific instances of a witness's conduct in order to attack or
support the witness's character for truthfulness." Fed. R. Evid. 608(b). Although the
sole purpose of the expert's testimony was to undermine Parkhurst's credibility, we
agree with both parties that Rule 608(b) does not apply to this testimony. The
expert's testimony would have cast doubt on Parkhurst's assertion that Strong pushed
her. It would not have "prove[d] specific instances of [Parkhurst's] conduct" or
"attack[ed] or support[ed her] character for truthfulness." Id. The district court's
reasoning does, however, demonstrate why the evidence was not proper under Rule
702. The testimony served no real purpose related to the aggravated sexual assault
case, and it would not have assisted the jury in reaching a conclusion. Thus, the
district court did not abuse its discretion by excluding the expert's testimony.

      C.     Sentencing

       Lastly, Strong argues that this case should be reversed and remanded for
resentencing because the district court committed impermissible double counting by
simultaneously applying sentencing enhancements for abduction and physical
restraint based upon the same conduct. We disagree.

      "Double counting occurs when 'one part of the Guidelines is applied to increase
a defendant's punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.'" United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997) (quoting United States v . Alexander,
48 F.3d 1477, 1492 (9th Cir. 1995)). Stated differently, impermissible double

                                        -10-
counting occurs "when precisely the same aspect of a defendant's conduct factors into
his sentence in two separate ways." United States v. Waldner, 580 F.3d 699, 707 (8th
Cir. 2009) (quoting United States v. Smith, 516 F.3d 473, 476 (6th Cir. 2008)). "We
review de novo whether a district court impermissibly double counted in applying the
sentencing guidelines." Hipenbecker, 115 F.3d at 583. We also "give due deference
to the district court's application of the guidelines to the facts." Buford v. United
States, 532 U.S. 59, 63 (2001) (quoting 18 U.S.C. § 3742(e)).

        The Guidelines direct sentencing courts to first apply the appropriate specific-
offense characteristics and then apply Chapter Three adjustments. U.S.S.G.
§ 1B1.1(a)(2)-(3). The district court applied a 4-level enhancement for abduction
under § 2A3.1(b)(5). A person has been abducted if she "was forced to accompany
an offender to a different location." Id. § 1B1.1, cmt. n.1(A). The court then applied
a 2-level upward adjustment for physical restraint under § 3A1.3. "'Physically
restrained' means the forcible restraint of the victim such as by being tied, bound, or
locked up." Id. § 1B1.1, cmt. n.1(K). The commentary on "Restraint of Victim"
states, "Do not apply this adjustment where the offense guideline specifically
incorporates this factor, or where the unlawful restraint of a victim is an element of
the offense itself (e.g., this adjustment does not apply to offenses covered by § 2A4.1
(Kidnapping, Abduction, Unlawful Restraint))." Id. § 3A1.3, cmt. n.2 (emphasis
added). Strong argues that this comment precludes the court from applying the
physical restraint adjustment because it applied the abduction enhancement.
However, "the drafters did not intend that [abduction and physical restraint
enhancements] be considered mutually exclusive, but rather gradations of aggravating
conduct." United States v. Gall, 116 F.3d 228, 230 (7th Cir. 1997); see also United
States v. Smith, 320 F.3d 647, 657-58 (6th Cir. 2003) (rejecting a double counting
claim that was based on the application of abduction and physical restraint). Also,
the offense in this case was aggravated sexual abuse under U.S.S.G. § 2A3.1, not
abduction. Had the offense been abduction, adding a physical restraint adjustment
would have clearly been improper based on § 3A1.3, cmt. n.2.

                                         -11-
       Strong further argues that the conduct supporting the abduction enhancement
was exactly the same conduct used to justify the physical restraint adjustment.
However, the PSR shows that each enhancement was applied to separate conduct.
Moreover, based upon the Guidelines' definition of abduction, the evidence used to
justify the physical restraint adjustment would not have supported the abduction
enhancement. The abduction enhancement was based on Strong "forc[ing Parkhurst]
to return to the Strong residence after he located her at a neighbor's residence
following her attempt to flee." Merely dragging a victim from one room to another
is not abduction. United States v. Cooper, 360 F. App'x 657, 659 (7th Cir. 2010).
Here though, after Parkhurst escaped, she was actually dragged to "a different
location," not merely another room. Thus, the abduction enhancement was proper.
The physical-restraint adjustment was based on Parkhurst's three-day confinement to
the Strong residence and her inability to leave. When she tried to leave, Strong
threatened and physically assaulted her. This court has upheld physical-restraint
adjustments where a victim was pushed and grabbed to prevent her from leaving the
bedroom, Arcoren v. United States, 929 F.2d 1235, 1246 (8th Cir. 1991), and where
a victim was held to the floor, threatened with a weapon, and forcefully tattooed after
being told he could not leave the trailer. United States v. Aguilar, 512 F.3d 485, 488
(8th Cir. 2008). Strong's physical restraint adjustment was adequately supported by
the facts of the case. Therefore, the "kind of harm [Parkhurst suffered while being
physically restrained was not] already . . . fully accounted for by application of" the
abduction enhancement. Hipenbecker, 115 F.3d at 583. As such, the district court
committed no impermissible double counting.

III.   CONCLUSION

       The judgment of the district court is affirmed.




                                         -12-
KELLY, Circuit Judge, dissenting.

       I agree that the fact and basic circumstances of Strong’s prior, unrelated sexual
assault of Clarissa Smith were admissible under Rules 413 and 403 for the reasons
given by the court. I disagree, however, that it was permissible to introduce the
particular evidence that the government did on this issue. When it comes to prior
sexual assaults, Rule 413 lifts many of the usual restrictions on introducing evidence
of a defendant’s prior bad acts to show action in conformity with past behavior. See
23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure
§ 5416 (Supp. 2010). But evidence of past sexual assaults is still inadmissible if its
probative value is substantially outweighed by the danger of unfair prejudice. See
United States v. Never Misses A Shot, 781 F.3d 1017, 1027 (8th Cir. 2015); United
States v. Sumner, 119 F.3d 658, 661–62 (8th Cir. 1997).

       In this case, the government did not limit the evidence to a straightforward
recitation of the fact and circumstances of the prior sexual assault. Instead, the
government put on the stand an FBI agent who investigated the prior sexual assault
of Clarissa Smith, and who described the assault and its aftermath in graphic detail,
telling the jury that Strong “had bashed her head off [a] nightstand” and “it was just
blood everywhere” in the room where the assault took place, “including the ceiling.”
Through the agent, the government introduced six photographs of Smith’s injuries
and the bloodstained room for the jury’s inspection.

       Clarissa Smith herself then testified, at one point breaking down on the stand.
After some preliminary questioning, the prosecutor began asking her leading
questions to elicit a description of the prior assault. Smith simply answered yes to
such questions as: “Did he punch you in the face? . . . And did that cause two big
black eyes on your face?”; “Did he strangle you? . . . And by strangling you, did he
put his hands around your neck?”; and “Did he take your head and bash your head
into a wooden stand in the bedroom?” At one point, after asking Smith whether she

                                         -13-
still had a scar on her back from where Strong bit her, the prosecutor asked her to
show the scar to the jury, which she did. At closing, the government returned to
Smith’s assault, emphasizing the “emotional scars” that made it “difficult for her to
relive what happened to her five years ago.” It listed off Smith’s injuries and again
showed the jury photographs of her wounds.

         Much of the evidence the government introduced pursuant to Rule 413 was,
in my view, substantially more prejudicial than probative of Strong’s guilt in this case
and therefore inadmissible under Rule 403. Showing the jury photographs, coupled
with graphic descriptions of Smith’s injuries and her own harrowing but largely
duplicative testimony, added little in the way of probative propensity evidence to a
verbal recitation of Strong’s prior acts, but the potential for these pieces of evidence
to “inflame the jury” and “distract[] the jury from its task” by provoking an emotional
response is evident. United States v. Ford, 17 F.3d 1100, 1103 (8th Cir. 1994); see
also Fed. R. Evid. 403 advisory committee’s note (“‘Unfair prejudice’ within [Rule
403’s] context means an undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.”); United States v. Old Chief,
519 U.S. 172, 181 (1997) (warning against the danger that a jury “uncertain of guilt
. . . will convict anyway because a bad person deserves punishment”); United States
v. Rogers, 587 F.3d 816, 822–23 (7th Cir. 2009) (explaining that “evidence of prior
sexual offenses may still pose significant dangers against which the district court
must diligently guard,” including that “a jury might use such evidence . . . to convict
a defendant because it is appalled by a prior crime the defendant committed rather
than persuaded that he committed the crime charged”); United States v. Jones, 748
F.3d 64, 71 (1st Cir. 2014) (listing improper inferences); United States v. Guardia,
135 F.3d 1326, 1330–32 (10th Cir. 1998). As a result, I cannot agree that there was
“no unfair prejudice” from the admission of the prior sexual assault evidence as it
came in at trial. Ante at 7. On the contrary, it was significantly prejudicial, and given
the cumulative nature of the evidence, the prejudice substantially outweighed any
probative value.

                                          -14-
       Strong’s conviction, then, can only be affirmed if the erroneous admission of
this prior sexual assault evidence was harmless.3 See Fed. R. Crim. P. 52(a). The
government bears the burden of showing that it was. See United States v. Pirani, 406
F.3d 543, 550 (8th Cir. 2005) (en banc). In my judgment, that burden has not been
met.

       The court’s description of Parkhurst’s confinement, ante at 2, is in fact drawn
entirely from Parkhurst’s testimony. The full measure of evidence at trial was far
more equivocal. Although Parkhurst testified that Strong physically prevented her
from leaving his father’s house from June 6th through June 8th,4 several other
witnesses testified that they saw her, uninjured, at Strong’s father’s house and
elsewhere that weekend. Although the testimony from these witnesses was not
without its own problems, it was clearly inconsistent with Parkhurst’s testimony. One
witness, Paul Stillday, testified that he saw Parkhurst the evening of June 7th in the
living room of Strong’s father’s house. Another, Mary Ellen Cook, testified that the
evening of June 7th, Parkhurst made a phone call from Strong’s father’s house and
then visited Paul Stillday’s home the following day with an acquaintance named
Shannon Rainey. Yet another, Reginald Stillday, testified that he gave Strong a ride
on June 8th and saw Parkhurst and Rainey in a car by themselves. And Rainey


      3
       The government appears to agree that Strong preserved his objection to each
individual piece of evidence concerning the prior sexual assault. It nevertheless
contends that even if the admission of some of the prior sexual assault evidence was
erroneous, the district court’s decision should be reviewed for plain error, see Fed.
R. Crim. P. 52(b), because Strong objected to all the prior sexual assault evidence,
and not just the subset of it that was inadmissible. But the government cites no
authority for the proposition that a defendant who objects to all sexual assault
evidence, some of which is admissible, waives his otherwise valid objections to the
pieces of evidence which are not admissible.
      4
        Parkhurst testified that, at least from June 7th–8th, Strong “required [her] to
stay inside the bedroom the whole time.”

                                         -15-
herself testified that she saw Parkhurst relaxing on a bed in the living room of
Strong’s father’s house the afternoon of June 8th and gave her a car ride.

       There was also reason to doubt the reliability of Parkhurst’s own testimony.
Parkhurst agreed on cross-examination that she had been drinking heavily that
weekend and that “the alcohol affected [her] ability to remember.” She conceded that
she could not remember whether there was a party at Strong’s father’s house on June
7th (there was), or who had come over. Moreover, her account of escaping from
Strong’s house was inconsistent: According to Sergeant Alexandra Dow of the Red
Lake Police Department, who interviewed Parkhurst at the hospital, Parkhurst said
she had escaped while Strong had fallen asleep, but Parkhurst herself testified at trial
that she escaped when Strong was in the bathroom. And both Dow and Paul Smith,
a criminal investigator with the Red Lake Department of Public Safety, testified that
she never reported a sexual assault when they talked to her at the hospital. In fact,
she first reported the sexual assault ten days after the car crash, during an interview
with an FBI agent.

      Without the prior sexual assault evidence, this would be a weak case for the
government. Indeed, it is evident that the jury was influenced by the prior-crime
evidence, since both questions it asked of the court during its deliberations concerned
the sexual assault of Clarissa Smith, not the crime Strong was on trial for.5 Under
these circumstances, it is difficult to see how the government could show that the
admission of the highly inflammatory evidence discussed above was not prejudicial,



      5
        The first, which the district court declined to answer, asked what counts had
been dismissed in the prior case involving Smith. The second suggested that the jury
thought the jury instructions were contradictory insofar as they suggested that the
prior sexual assault could be considered in determining guilt, but that Strong could
not be convicted because of the prior sexual assault. In response, the district court
appropriately attempted to explain the distinction between the two concepts.

                                         -16-
even if a more clinical description of the prior sexual assault had come in. See supra
at 13–14. I would therefore vacate Strong’s conviction and remand for a new trial.

       But even assuming Strong’s conviction should be affirmed, I believe the
application of a four-level enhancement in calculating his Guidelines range was
erroneous. See USSG § 2A3.1(b)(6). Application of the abduction enhancement
requires showing by a preponderance of evidence that Strong abducted Parkhurst.
See United States v. Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994). The factual basis
offered by the government for this enhancement is that Strong began dragging
Parkhurst back to the house after he caught her as she was trying to escape. But that
is not what the evidence showed. The only evidence of what happened when Strong
caught Parkhurst came from Parkhurst herself, who testified as follows:

      Q.     Okay. And what did he do when he caught you?
      A.     Start bringing me back to his house.
      Q.     Did he grab you in any way?
      A.     Yes.
      Q.     How did he grab you?
      A.     He wrapped his arms around me.
      Q.     Where did you go after he wrapped his arms around you?
      A.     I just remember being by the road if I went anywhere.

(Emphasis added.) In other words, when directly asked where Strong took her,
Parkhurst could not say she had been taken anywhere at all.6




      6
        In light of this testimony, the only logical interpretation of Parkhurst’s
previous statement that Strong “[s]tart[ed] bringing me back to his house” is that it
refers to his grabbing her in preparation for dragging her back.

                                        -17-
       As the court notes, the Guidelines define “abduction” to mean “that a victim
was forced to accompany an offender to a different location.” USSG § 1B1.1, cmt.
n.1(a). The testimony quoted above is not a sufficient basis to find that Strong forced
Parkhurst to accompany him from one location to another; it is, instead, consistent
with Strong grabbing Parkhurst by the side of the road and throwing her in front of
a car. That is not an “abduction” by any sense of the term, let alone the Guidelines
definition.7 Cf. United States v. Eagle Thunder, 893 F.2d 950, 954–55, 956 (8th Cir.
1990) (holding that application of abduction enhancement based on victim’s
statements was erroneous when she recanted those statements at trial).

       Even if – contrary to the trial testimony – we assume that Strong did move
Parkhurst, there is no testimony suggesting that Strong moved her to “a different
location,” as the enhancement requires.8 See United States v. Whatley, 719 F.3d
1206, 1222–23 (11th Cir. 2013) (applying ordinary meaning of the term “different
location” to hold that forcing bank employees to move around at gunpoint did not
constitute an abduction); United States v. Eubanks, 593 F.3d 645, 654 (7th Cir. 2010)
(holding that dragging a store employee about six feet from back room to front room
of a store was not abduction); cf. United States v. Reynos, 680 F.3d 283, 289–91 (3d
Cir. 2012) (affirming district court’s determination, after soliciting videos and
information on “exact layout” of building, that destination was “a different location”


      7
        The district court made no explicit factual finding to the contrary that might
warrant our deference, stating simply that “based upon my memory of the testimony
– I have not reviewed the transcript – but I’m satisfied that there’s sufficient basis in
the – factual basis in the testimony to support the enhancement.”
      8
       In fact, the government conceded at oral argument that Strong’s conduct was
“more of an attempted abduction because he didn’t complete it.” See Oral Argument
at 23:35–23:50, http://media-oa.ca8.uscourts.gov/OAaudio/2016/2/152083.MP3. It
may be that this concession decides the issue, as an attempted abduction is not likely
to include a person successfully forcing another to accompany him to a different
location. Otherwise, it would be an actual abduction.

                                          -18-
by virtue of its “locked door, separate walls and distance from” origin); United States
v. Osborne, 514 F.3d 377, 388–91 (4th Cir. 2008) (relying on fact that victims were
moved between sections of store separated by secured door and counter to find that
they were moved to “a different location”). The court agrees that “the evidence used
to justify the physical restraint adjustment would not have supported the abduction
enhancement.” Ante at 12. That evidence, according to the government, was
Parkhurst’s testimony that whenever she would try to leave, Strong “would follow me
to the door . . . grab me by my hair, pull me back, throw me on the floor.” (Emphasis
added.) Reading Parkhurst’s testimony about being seized by the side of the road,
one cannot conclude that the abduction enhancement was based on more than this
type of limited movement. Her testimony therefore does not support the conclusion
that she was dragged to “a different location,” so applying the abduction enhancement
was improper.

       Finally, I believe the district court’s decision to exclude the defendant’s expert
was in error, though it would not, in my view, warrant reversal. The government
agrees that the district court was wrong to exclude the expert’s testimony under Rule
608 of the Federal Rules of Evidence. But it nevertheless contends that it was
properly excluded because whether Strong pushed Parkhurst in front of the car was
irrelevant to the sexual assault charge. Whatever might be said for this claim, it
wasn’t the view of the district court or the government at trial.

       The trial began with the government spending much of its opening statement
on the car crash, telling the jury not just that it took place, but that Strong pushed
Parkhurst in front of the car. It then solicited testimony from numerous witnesses,
including Parkhurst, Sergeant Dow, and Smith, that Strong pushed Parkhurst in front
of the car. In fact, one government witness, Montana Keoke, was called solely to
testify about the car crash. In closing arguments, the government returned to the same
theme, stressing the fact that Strong “threw [Parkhurst] in front of the car,” and



                                          -19-
arguing that this was relevant to show an element of sexual assault – namely, that
Strong used force.

       I agree, of course, that the district court has discretion in determining whether
or not to admit evidence. But that discretion must be exercised consistently.
Evenhanded application of the rules of evidence is especially important in criminal
cases, where the defendant has a constitutional right against the arbitrary exclusion
of his witnesses’ testimony. United States v. Turning Bear, 357 F.3d 730, 733 (8th
Cir. 2004). The district court would have been within its rights to have permitted
both the government and the defense to introduce evidence about whether Strong
pushed Parkhurst, and it would have been equally entitled to have barred both sides
from presenting such evidence. What it could not do was permit the government to
introduce such evidence but forbid the same from the defense – particularly on the
shaky theory that it was relevant for the government but not so for the defense.9

       Despite the error, I would conclude that the exclusion of the expert was
harmless. Even if the exclusion of the expert implicated Strong’s constitutional right
to present a complete defense, meaning the verdict could only stand if there was no
reasonable possibility that the exclusion of the evidence contributed to the jury’s
guilty verdict, Chapman v. California, 386 U.S. 18, 22 (1967), that standard is met
here. The expert would only have testified that the physical evidence was
inconclusive as to whether Parkhurst was pushed in front of the car, not that the
physical evidence was inconsistent with Parkhurst’s testimony. Any relevance this


      9
       Rule 702’s requirement that expert testimony be helpful to the trier of fact is
synonymous with the relevance requirement that applies to all evidence; it does not
impose a separate hurdle on expert testimony. See Johnson v. Mead Johnson & Co.,
754 F.3d 557, 561–62 (8th Cir. 2014); In re Air Crash at Little Rock, Ark., 291 F.3d
503, 514 (8th Cir. 2001); Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir.
2001). The government does not argue that any other requirement of Rule 702 was
not met.

                                         -20-
conclusion might have had to Strong’s guilt is sufficiently attenuated that one can
conclude with confidence that “the guilty verdict . . . was surely unattributable to the
error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).

      In sum, I would vacate Strong’s conviction and remand for a new trial. Even
overlooking the admission of the prior sexual assault evidence, however, I would
vacate Strong’s sentence and remand for resentencing.
                      ______________________________




                                         -21-
