USA v. Gorman

• Decision Date: 28 July 2010
• Docket Number: No. 09-3010.,09-3010.
• Citation: 613 F.3d 711
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jamarkus GORMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

613 F.3d 711

UNITED STATES of America, Plaintiff-Appellee,

v.Jamarkus GORMAN, Defendant-Appellant.

No. 09-3010.

United States Court of Appeals,Seventh Circuit.

Argued April 6, 2010.

Decided July 28, 2010.

COPYRIGHT MATERIAL OMITTED.

Melanie C. Conour (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Beau B. Brindley (argued), Shapiro & Brindley, Chicago, IL, for Defendant-Appellant.

Before KANNE, ROVNER, and TINDER, Circuit Judges.

KANNE, Circuit Judge.

Jamarkus Gorman was convicted of perjury after testifying falsely before a grand jury. He now challenges both the basis for his perjury conviction and the admission of evidence at his trial. We affirm.

I. Background

In June 2007, federal law enforcement agents began investigating the drug activities of Jermoine Gorman. ¹ After Jermoine was arrested for drug trafficking, federal officials obtained and executed a search warrant at Jermoine's Indianapolis residence in conjunction with that arrest. During this search, they discovered a lease in the name of “J. Gorman” for a condominium located in an exclusive gated community, Lion's Gate Condominium Complex, along with keys to and pictures of a Bentley. After contacting the complex, officials discovered that the lease was actually in Appellant Jamarkus Gorman's name.

Intending to seize the Bentley as proceeds of Jermoine's illegal drug activity, officials arranged to meet Jamarkus at the Lion's Gate complex the following day. After explaining to Jamarkus that his cousin had been arrested and that they were looking for proceeds of drug trafficking, including the Bentley, Jamarkus consented to a search of his condominium unit. While searching his condominium, officials asked Jamarkus if he was aware of a Bentley belonging to Jermoine that was stored in the complex's garage. Jamarkus said that he was unaware of any Bentley, let alone one stored in the basement garage.

Upon completion of their search of the condominium unit, Jamarkus escorted the officials to the basement garage. The garage was designed so that one wall was composed of tandem parking spots and the opposite wall was comprised of single parking spots. Dividing the wall of tandem spots into two was an enclosed section containing the mailroom, a storage space, the elevator bank, and the elevator equipment room.

Jamarkus led the officials to the garage via the elevator. When they emerged, Jamarkus pointed out what he said were his assigned parking spots, referring generally to the areas covered by spots 20 through 22. Unsurprisingly, those spots were vacant. Their investigation concluded, the officials left empty-handed.

Unbeknownst to the officials, however, was the fact that Jamarkus actually utilized tandem spots 31A and B-spots which were located on the other side of the division created by the elevator bank and which were not visible from the location of spots 20 through 22. ² In fact, on the day that the officials searched the complex, the Bentley was parked against the wall in parking spot 31 and in front of it was parked an Expedition. ³

Later that same afternoon, a Friday, condominium maintenance technician Kevin McCray saw Jamarkus fiddling with the trunk of the Bentley. Jamarkus explained to McCray that he had locked his keys in the trunk. When McCray returned to work the following Monday, the Bentley was gone, leaving in its place only an oil spill on the floor where the car had once been.

Law enforcement officials later determined that over the weekend preceding discovery of the car's disappearance, Jamarkus had enlisted the help of a handful of individuals in removing the Bentley from the garage. These individuals were Chavis Taylor; two tow truck drivers, Tyrone Whitson and Suglett Miller; two crooked Indianapolis police officers, Jason Edwards and Robert Long; and an individual known only as “J-Rock.”

On the day of the theft, Jamarkus led all of the participants to the garage, using the key pad to enter. He instructed the men to pour oil onto the floor to allow the Bentley's tires to slide; the men complied with Jamarkus's direction, wenching the Bentley from the garage floor to the bed of a flatbed wrecker. They covered the Bentley and removed it from the condominium garage. Taylor, Edwards, and Long escorted the Bentley to Whitson's automotive shop. At the shop, Jamarkus explained that he needed to retrieve an ID from the car and two bags from the trunk. The men then cut the soft top to access the car and pried open the trunk. The bags were removed and given to Jamarkus. Then Edwards and Long paid Miller, Whitson, and J-Rock $1,000 to $5,000 each. The men paid Taylor $10,000 for his involvement. Taylor was sure that his payment had come from money contained in the bags seized from the Bentley, and later claimed to have been told that the bags contained approximately $100,000. The men then took the Bentley to a parking lot and abandoned it. Law enforcement officers discovered the abandoned car the ensuing Monday morning.

Following these events, and in an unrelated investigation, Internal Revenue Service Agent Eric White began investigating a money laundering scheme perpetrated by Jermoine. Jermoine and two other individuals were later charged with money laundering. As part of the indictment process, Jamarkus was required to testify before a grand jury. During the course of Jamarkus's testimony, he was questioned about his residence at Lion's Gate. He was also questioned about the Bentley.

Jamarkus began his testimony by acknowledging that he had heard rumors that Jermoine owned a Bentley but that he had never seen the car. Grand jurors then proceeded to question Jamarkus about the presence of a Bentley in his Lion's Gate garage and its subsequent removal. The statement serving as the basis for Jamarkus's eventual perjury conviction occurred during this exchange:

Grand Juror: Mr. Gorman, did you have a Bentley in your garage at Lion's Gate?

Jamarkus: No.

Grand Juror: Ever?

Jamarkus: No, never.

(Appellant's Br. at 4; Appellee's Br. at 14.)

Much like the infamous Al Capone, it was not his more offensive criminal activity that eventually caught up with Jamarkus. Rather, it was the three words encompassing his grand jury testimony that ultimately served as the basis for Jamarkus's indictment and eventual conviction. Jamarkus was charged with perjury and proceeded to trial.

Prior to Jamarkus's perjury trial, the government made known its intention to admit certain witness statements detailing Jamarkus's orchestration of the Bentley theft and his subsequent retrieval of money from the car. In response, Jamarkus filed a motion in limine to suppress the evidence, arguing that the theft itself was impermissible “other bad acts” evidence under Federal Rule of Evidence 404(b). The government countered that the witness testimony was admissible under the “inextricable intertwinement” doctrine, as well as Rule 404(b) and, as regarding certain evidence, Rule 801(d)(2)(E).

The district court ultimately determined that the evidence of the theft was admissible under the inextricable intertwinement doctrine. Therefore, Rule 404(b)'s limitations were inapplicable. The court reasoned that the evidence provided proof of the perjury and illuminated Jamarkus's motivation to lie. The court thus admitted the evidence despite Jamarkus's failure to request a limiting instruction to the jury.

Following the trial, the jury convicted Jamarkus of perjury. The court sentenced him to thirty-six months' imprisonment with two years' supervised release. Jamarkus now appeals both the basis for his perjury conviction and the admission of evidence relating to the Bentley's theft. We address each in turn.

II. Analysis

A. Sufficiency of Evidence

Jamarkus first argues that the government's evidence is insufficient to sustain his perjury conviction. Jamarkus bases this argument on his interpretation of the word “have.” Jamarkus argues that he could not have perjured himself because he did not “have” a Bentley. Because the Bentley belonged to his cousin Jermoine, so goes the argument, Jamarkus was being truthful when he testified that he did not have a Bentley in his garage.

We review a sufficiency of the evidence question in the light most favorable to the government. United States v. Carrillo, 435 F.3d 767, 775 (7th Cir.2006). Thus, a jury's decision will be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Melendez, 401 F.3d 851, 854 (7th Cir.2005) (internal quotation marks omitted). To support a conviction of perjury beyond a reasonable doubt, the government had the burden of proving that (1) the defendant, while under oath, testified falsely before the grand jury; (2) his testimony related to some material matter; and (3) he knew that testimony was false. 18 U.S.C. § 1623.

When reviewing sufficiency of the evidence through the lens of a perjury conviction, however, an unresponsive yet literally true answer will not sustain the conviction. Bronston v. United States, 409 U.S. 352, 356-58, 362, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). Jamarkus therefore argues that his answer was literally true-he did not “own” the Bentley so could not “have” a Bentley in the Lion's Gate garage. He rests his reasoning on the definition of the word “have,” which has multiple meanings, asserting that its most predominant meaning is ownership and control. Based on this understanding of “have,” Jamarkus claims that while his answer to the grand jury may have been misleading and evasive, it was literally true.

When stretched to its logical limit, this argument has some merit. But it is still a stretch, and we are not in the business of engaging in mental gymnastics. See, e.g., In re Mayer, 108 F. 599, 614 (7th Cir.1901) (Jenkins, J., dissenting) (criticizing the court for “indulg[ing] [in] a game of judicial battledoor and shuttlecock, interesting, indeed, as...