Federal Evidence Review

In grand jury perjury trial, admitting evidence that the defendant stole a Bentley car from a garage on a flatbed truck and removed cash from the car; circuit criticizes and overrules prior cases relying on the “inextricable intertwinement doctrine”; the evidence was nonetheless admissible as “direct evidence of his false testimony,” in United States v. Gorman, 613 F.3d 711 (7th Cir. July 28, 2010) (No. 09-3010)

The “inextricably intertwined” doctrine is an important exception to admitting evidence under Rule 404(b). The requirements of FRE 404(b), including pretrial notice, do not apply if evidence is admissible under the inextricably intertwined doctrine. The Seventh Circuit has increased the use of this theory of admissibility in recent years. Now the Seventh Circuit has terminated this theory as a basis to admit evidence.

In the case, the defendant was prosecuted for perjury based on false testimony provided to the grand jury. Law enforcement sought to locate a Bentley to seize as proceeds of drug trafficking. Before the car could be located, the defendant had the Bentley stolen from a garage on a flatbed truck and removed cash from the car. In an unrelated money laundering investigation, the defendant testified before the grand jury and was asked by a grand juror whether he had “a Bentley in your garage at Lion’s Gate?” He responded, “No, never.” Gorman, 613 F.3d at 715. This false statement was the basis of the perjury case. Before trial, the defendant moved to exclude evidence of his involvement in stealing the Bentley while law enforcement was looking for it. The trial court denied the motion after concluding the evidence was admissible under the inextricable intertwinement doctrine to show the defendant’s motive to lie and to complete the story of the case. The jury convicted the defendant of perjury. On appeal, he challenged the admission of the Bentley theft evidence.

The Seventh Circuit affirmed the conviction but once again criticized the inextricable intertwinement doctrine as a basis to admit evidence. As the circuit explained:

We have recently cast doubt on the continuing viability of the inextricable intertwinement doctrine, finding that “[b]ecause almost all evidence admitted under this doctrine is also admissible under Rule 404(b), there is often ‘no need to spread the fog of “inextricably intertwined” over [it].’” [ United States v. ] Conner, 583 F.3d [1011,] 1019 [(7th Cir. 2009)] (quoting United States v. Taylor, 522 F.3d 731, 734 (7th Cir. 2008), cert. denied, 129 S. Ct. 190 (2008)). We again reiterate our doubts about the usefulness of the inextricable intertwinement doctrine, and again emphasize that direct evidence need not be admitted under this doctrine. If evidence is not direct evidence of the crime itself, it is usually propensity evidence simply disguised as inextricable intertwinement evidence, and is therefore improper, at least if not admitted under the constraints of Rule 404(b). See, e.g., Taylor, 522 F.3d at 734 (“A defendant’s bad act may be only tangentially related to the charged crime, but it nevertheless could ‘complete the story’ or ‘incidentally involve’ the charged offense or ‘explain the circumstances.’”).

We recognize, however, that we do not write on a clean slate. There traditionally have been subtle distinctions between direct evidence of a charged crime, inextricable intertwinement evidence, and Rule 404(b) evidence, … but our case law has not often focused on these fine distinctions. We have often lumped together these types of evidence, see, e.g., United States v. Diaz, 994 F.2d 393, 394-95 (7th Cir. 1993) (“[W]e have said that [direct] evidence is ‘intricately related’ to the occurrence of the charged offense . . . .”); United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991) (affirming the admission of direct evidence under the intricately related doctrine), and this has only served to further cloud the already murky waters of the inextricable intertwinement doctrine.

There is now so much overlap between the theories of admissibility that the inextricable intertwinement doctrine often serves as the basis for admission even when it is unnecessary. Thus, although this fine distinction has traditionally existed, the inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful. To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness. Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.

Gorman, 613 F.3d at 718-19 (footnote omitted).

The impact of the decision was to overrule prior Seventh Circuit cases supporting the inextricable intertwinement doctrine. Consequently, the panel noted that “[b]ecause our decision overrules our 5 prior line of cases, we have circulated it to the full court as required by our Circuit Rule 40(e). No judge favored a hearing en banc.” Gorman, 613 F.3d at 719 n.5.

Nonetheless, the evidence was admissible on an alternative basis which found support in the record. The evidence was admissible as “direct evidence of his false testimony” after he “denied ‘having’ the car in his garage.” Additionally, given the probative value of the evidence, it was not unfairly prejudicial. Gorman, 613 F.3d at 720.

Nearly every other circuit allows for the admission of inextricably intertwined (sometimes called intrinsic) evidence as an alternative basis to FRE 404(b). The Seventh Circuit decision now conflicts with these other cases.