United States of America v. Eric Scott Kindley

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3484
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Eric Scott Kindley
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: September 23, 2022
Filed: November 28, 2022
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
A jury found Eric Scott Kindley guilty of depriving A.M. and E.S. of their right
to bodily integrity while he was acting under the color of law, in violation of 18
U.S.C. § 242, and with possessing a firearm in furtherance of his sexual assault of

-- 1 of 5 --

E.S., in violation of 18 U.S.C. § 924(c)(1)(A). He argues that the district court1
abused its discretion in admitting certain evidence under Federal Rules of Evidence
413 and 404(b). We affirm.
Kindley, the owner of a Nevada-based inmate transport company, transported
individuals arrested on out-of-state warrants to the jurisdictions in which they faced
criminal charges. During his transport of A.M. in February 2014, Kindley stopped
in Arkansas, where he forced the handcuffed and shackled A.M. to perform oral sex
on him by grabbing her hair, pulling her toward him, forcing her face onto his erect
penis, and pushing her head until he ejaculated in her mouth.
During his transport of E.S. in January 2017, Kindley repeatedly put his hand
on the gun that was holstered on his right hip. After E.S. said she needed to use the
bathroom, they stopped in Arkansas, where Kindley removed the handcuff from
E.S.’s right wrist and instructed her to urinate near the van. Kindley thereafter
slammed her against the van, grabbed her breast, digitally penetrated her vagina, and
pressed his erect penis against her abdomen. Before demanding oral sex, he
threatened her by saying “all it takes is one bullet to the head.” After E.S. refused his
demand, Kindley again slammed her against the van and put his hand over his gun.
In response to E.S.’s shouts, coyotes howled and a nearby house’s porch lights lit up,
whereupon Kindley ordered E.S. to “[g]et in the f . . . ing van.” Other than her freed
right hand, E.S. remained handcuffed and shackled throughout the assault.
Before trial, the government identified seven women who would testify that
they had been sexually assaulted by Kindley, together with eight women who would
testify that, although Kindley had not sexually assaulted them, he had subjected them
to a pattern of conduct similar to that which A.M. and E.S. had experienced. Kindley
1The Honorable D.P. Marshall Jr., Chief Judge, United States District Court for
the Eastern District of Arkansas.
-2-

-- 2 of 5 --

objected to the evidence, arguing that it would deny him a fair trial. He asked that the
evidence be excluded entirely or, in the alternative, significantly limited.
The district court determined that evidence of prior sexual assaults was
admissible under Rule 413 and that evidence of prior bad acts was admissible under
Rule 404(b). The court weighed the probative value of the evidence against the
danger of unfair prejudice, of confusing the issues, and of needlessly prolonging the
trial with cumulative evidence. See Fed. R. Evid. 403. The court ultimately decided
to exclude the testimony of certain witnesses and limit the number of witnesses who
could testify under Rules 413 and 404(b), explaining that “[t]he issue here is
volume.” D. Ct. Order of Nov. 21, 2019, at 4.
In addition to A.M. and E.S., two Rule 413 witnesses and two Rule 404(b)
witnesses testified at trial. Like A.M. and E.S., the Rule 413 witnesses testified that
Kindley had commented on their appearances and shared unsolicited stories about his
sexual encounters with other passengers; he then drove them to remote, isolated areas
after the women had asked to use the bathroom; he forced the women to perform oral
sex on him, repeatedly telling them that he knew people in power and “what happens
in the van stays in the van”; and he gestured toward his gun. The Rule 404(b)
witnesses testified that Kindley had engaged in similar conduct but had not sexually
assaulted them. The district court issued a cautionary instruction before each of the
Rule 413 and 404(b) witnesses testified and again before closing arguments.
Following the guilty verdict, Kindley was sentenced to concurrent terms of life
imprisonment on the deprivation-of-rights counts and a consecutive five-year term
of imprisonment on the firearm count.
Rule 413 provides that in sexual assault cases, “evidence that the defendant
committed any other sexual assault” may be admitted and considered “on any matter
to which it is relevant.” Rule 404(b) provides that evidence of a defendant’s prior
bad acts is not admissible to prove a defendant’s propensity to commit crime, but may
-3-

-- 3 of 5 --

be admissible for “another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
While he does not dispute the admissibility of the testimony under Rules 413 and
404(b), Kindley contends that the district court should have excluded the testimony
or further reduced the number of witnesses under Rule 403 because the probative
value of the evidence was substantially outweighed by the danger of unfair prejudice.
We review the district court’s evidentiary rulings for abuse of discretion. United
States v. Crow Eagle, 705 F.3d 325, 328 (8th Cir. 2013) (per curiam).
We find no abuse of discretion in the district court’s balancing of the probative
value and prejudicial impact of the Rule 413 and 404(b) evidence. With respect to
probative value, the Rule 413 witnesses’ testimony helped establish that Kindley had
a propensity to commit sexual assaults against the women in his custody during their
transport to an out-of-state facility. The Rule 404(b) witnesses’ testimony tended to
show that Kindley’s offense conduct was willful and that he had motive and
opportunity to commit the offenses. The disputed testimony thus helped the jury
answer the question posed by defense counsel during opening statement: “Do you
believe that these acts happened as described, or is this just blown out of proportion?”
That the Rule 413 evidence tended to show Kindley’s propensity to commit
sexual assaults does not establish that the evidence was unfairly prejudicial, for it
does not suggest a decision on an improper basis. See United States v. Weber, 987
F.3d 789, 793 (8th Cir. 2021) (“Evidence of propensity admitted under Rules 413 and
414 is not an ‘improper basis’ upon which a jury could rely, and thus not unfairly
prejudicial in this case.”); United States v. Gabe, 237 F.3d 954, 960 (8th Cir. 2001)
(“Because propensity evidence is admissible under Rule 414, this is not unfair
prejudice.”). Nor was the Rule 404(b) evidence unfairly prejudicial, particularly in
light of the district court’s repeated cautionary instructions. See Weber, 987 F.3d at
793–94 (“[T]he potential for unfair prejudice was greatly reduced where, as here, the
district court gave a limiting instruction.”).
-4-

-- 4 of 5 --

Kindley argues that the number of Rule 413 and 404(b) witnesses rendered his
conviction “a foregone conclusion,” because “[t]here were twice as [many] other
crime victims as victims in the indictment.” Appellant’s Br. 14–15. The district court
carefully considered the impact of witnesses’ testimony. It found that “individually,
no account is so unfairly prejudicial or problematic that it requires exclusion under
Rule 403.” D. Ct. Order of Nov. 21, 2019, at 4. It also recognized, however, “an
issue of diminishing evidentiary returns—each additional account carries a bit less
probative value, but a bit more prejudice to Kindley.” Id. The district court acted
well within its discretion when it decided to exclude certain witnesses and limit the
number of Rule 413 and Rule 404(b) witnesses. See Crow Eagle, 705 F.3d at 328
(“This limitation and the cautionary jury instructions indicate that the district court
properly balanced the probative value of the evidence with the risk of unfair
prejudice.”).
Circuit precedent forecloses Kindley’s argument that Rule 413 violates his
constitutional right to due process. United States v. Mound, 149 F.3d 799, 801 (8th
Cir. 1998) (“Rule 413 does not violate the Due Process Clause.”). Kindley’s request
to file a pro se supplemental brief is denied. The judgment is affirmed.
______________________________
-5-

-- 5 of 5 --