United States v. Perryman

• Decision Date: 16 December 2021
• Docket Number: No. 20-1453,20-1453
• Citation: 20 F.4th 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael PERRYMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

20 F.4th 1127

UNITED STATES of America, Plaintiff-Appellee,

v.Michael PERRYMAN, Defendant-Appellant.

No. 20-1453

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2021

Decided December 16, 2021

Pamela Sarah Domash, Attorney, Office of the United States Attorney, Evansville, IN, Lindsay Karwoski, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

India R. Lane, Attorney, Law Office of India Lane, Indianapolis, IN, for Defendant-Appellant.

Before Hamilton, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Law enforcement agents searched Michael Perryman's home and found drugs, baggies, a digital scale, and a loaded AR-15 rifle. Perryman was then charged with drug and firearm offenses. At trial, he sought to impeach an officer's truthfulness by introducing a fifteen-year-old reprimand regarding an unrelated case, which the district court precluded him from doing. A jury convicted him on all counts. On appeal, Perryman maintains that the evidence was insufficient to convict him on any count and that the district court's exclusion of evidence reporting an incident unrelated to the case violated the Confrontation Clause. We reject both arguments and affirm the conviction.

I. Background

In Spring 2018, as part of a large antidrug operation, the Drug Enforcement Administration ("DEA") obtained a search warrant for Perryman's home in Indianapolis. A team of federal and local law enforcement agents arrived at the property, just as Perryman was departing in his car. After stopping Perryman and reading him his Miranda rights, the agents searched the home, which had a master suite that consisted of a bedroom, bathroom, and a large closet accessible only through the bathroom. In the master bathroom, on a shelf on top of the vanity next to the closet door, they found fentanyl, baggies, and a digital scale. In the closet, there was a loaded AR-15 rifle, three to four steps away from the fentanyl, along with men's shoes and clothes.

Perryman, with the agents' permission, called his then-girlfriend, Rasheema Moore, who arrived soon after. Although she lived elsewhere, she had signed the lease for the home. Moore said that the drugs, money, and gun were not hers.

The agents read Perryman his Miranda rights for a second time after the search, and he agreed to talk. He admitted that the drugs were his, then provided the agents with the name of his drug supplier. He did not, however, claim ownership of the gun. The rifle "belonged to a girlfriend," Maurita Thomas, who had originally bought the weapon with Perryman at a gun show. The pair had lived together at different places over the years in homes leased under Thomas's name. And they occasionally went shooting together. When Perryman relocated to the home that agents would later search, the rifle went with him. The two, though, spoke regularly. During one post-arrest conversation, Perryman asked Thomas to lie about the gun. He wanted her to say that she took the weapon from one house to the other. She initially complied, telling an investigator and defense counsel that she moved the weapon. But once under oath, she admitted those statements were untrue; she lied "to protect Michael."

Perryman was indicted on charges of possessing fentanyl with intent to distribute, 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1), and possessing a firearm while a convicted felon, Id. § 922(g)(1).

Prior to trial, the government moved in limine to exclude questioning concerning the disciplinary record of Indianapolis Metropolitan Police Department Sergeant Clifton Jones, who participated in the search of Perryman's home. The disciplinary offense stemmed from a complaint about Officer Jones's involvement in an unrelated investigation.¹ The Disciplinary Board issued a "Written Reprimand" based on its review. Perryman wished to impeach Officer Jones's credibility using this incident and focused his arguments on evidentiary points, adding in one sentence though that "[he] should be able to exercise his rights under the Confrontation Clause." The district court, ruling only on the evidentiary question, granted the government's motion in a sealed entry, concluding that any potential probative value of the evidence was substantially outweighed by the danger of unfair prejudice, misleading the jury, and confusing the issues.

The trial lasted two days. Near the end of the trial, Perryman again sought to impeach Officer Jones with the disputed evidence. The government objected, and the district court excluded the evidence. After the close of the government's case, Perryman moved for acquittal under Rule 29, which the district court denied. The jury convicted him on all counts. The district court sentenced Perryman to 228 months in prison, followed by five years of supervised release.

II. Discussion

Perryman argues that the evidence was insufficient to convict him on any count and that excluding Officer Jones's disciplinary action violated the Confrontation Clause.² We address each argument in turn.

A. Sufficiency of the Evidence

We review the denial of a motion for acquittal under Rule 29 de novo. United States v. Johnson , 874 F.3d 990, 998 (7th Cir. 2017). A jury verdict will only be overturned "if, after viewing the facts in the light most favorable to the government, there was insufficient evidence to convict." United States v. Jett , 908 F.3d 252, 273 (7th Cir. 2018). The defendant bears the burden of demonstrating that no reasonable jury could find guilt beyond a reasonable doubt. United States v. Tantchev , 916 F.3d 645, 650 (7th Cir. 2019) ; see also United States v. Warren , 593 F.3d 540, 546 (7th Cir. 2010) ("Such a challenge leads to a ‘ "reversal only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt." ’ " (quoting United States v. Moore , 572 F.3d 334, 337 (7th Cir. 2009) )). We have described this challenge for the defendant as an "uphill battle," United States v. Christian , 342 F.3d 744, 750 (7th Cir. 2003), a "momentous task," United States v. Lawrence , 788 F.3d 234, 239 (7th Cir. 2015), a " ‘heavy’ burden," Jett , 908 F.3d at 273 (citation omitted), and a "nearly insurmountable" hurdle, id. , one which Perryman cannot overcome for any count.

1. Possession of a Controlled Substance

Section 841(a)(1) criminalizes the possession of a controlled substance, such as fentanyl, with the intent to distribute. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(2). To convict, the government must prove that the defendant knowingly possessed fentanyl with the intent to distribute and knew that fentanyl was a controlled substance. See, e.g., United States v. Brown , 973 F.3d 667, 697–98 (7th Cir. 2020) (marijuana); United States v. Campbell , 534 F.3d 599, 605 (7th Cir. 2008) (cocaine). Perryman only disputes whether he possessed the fentanyl. For § 841(a)(1), possession can be either actual or constructive. United States v. Griffin , 684 F.3d 691, 695 (7th Cir. 2012). In this case, the government relies on constructive possession.

"Constructive possession," we have said, "is a legal fiction whereby a person is deemed to possess contraband even when he does not actually have immediate, physical control of the object." Id. The defendant must have both the "power and intention to exercise dominion and control over the object, either directly or through others," requiring some connection between the defendant and the illegal drugs. Id. That connection can come "in one of two ways." Id. The first way is where the defendant alone maintains " ‘exclusive control’ over the property where the contraband was discovered," which allows the logical inference that the defendant possesses the drugs located there. Id. (quoting United States v. Castillo , 406 F.3d 806, 812 (7th Cir. 2005) ). The second way of showing constructive possession, absent the defendant exercising exclusive control over the property, requires " ‘a substantial connection’ to the location where contraband was seized," one "sufficient to establish the nexus between that person and [any contraband]." United States v. Morris , 576 F.3d 661, 667 (7th Cir. 2009). In either case, the government can show constructive possession through direct or circumstantial evidence. Lawrence , 788 F.3d at 240.

Here, a reasonable jury could easily conclude that Perryman constructively possessed the fentanyl by his exclusive control over the drugs. Perryman confessed that the drugs were his, telling the agents immediately that the drugs belonged to him and even providing them with the name of his drug supplier. Perryman claims that this confession was false. But the government offered uncontroverted testimony about its veracity from the task force officer who interviewed Perryman after the search and heard his confession. The jury was entitled to credit that testimony in arriving at its verdict. Perryman even concedes, in his brief before this Court, that "[t]he jury could've relied on the testimony from [the testifying officer] that Mr. Perryman stated that everything in the condo is his except the rifle."

Additional evidence further links Perryman with the drugs. The police found the fentanyl in the home where Perryman resided by himself, paid the bills, and was seen exiting when agents arrived. See Griffin , 684 F.3d at 695 ("Exclusive control over the premises allows the jury to infer the knowledge and intent to control objects within those premises ...."). The drugs were in the master suite, where Perryman slept, by a closet filled with men's clothes. Perryman submits that because other people have stayed over, even leaving toothbrushes and feminine hygiene products behind, he could not have been the true possessor. But a person can still constructively possess drugs while living in a space visited by others. Whether a person maintains "exclusive control" over a residence generally turns...