Inextricably intertwined doctrine abolished

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Evidence may no longer be admitted in federal court under the inextricable intertwinement doctrine.

If it is not direct evidence of the crime, but instead evidence of other crimes, it must be admissible for some other legitimate purpose, such as to prove a defendant’s motive, intent, knowledge, preparation, plan, identity, or absence of mistake under FRE 404(b).

Judge Michael S. Kanne wrote for the Seventh Circuit on July 28, “the inextricable intertwinement doctrine has [] 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.”

The brother of Jamarkus Gorman was being investigated in 2007 for drug trafficking. Discovering that the brother owned a Bentley vehicle, and seeking to seize it as proceeds of drug trafficking, the agents met with Gorman.

Gorman denied any knowledge of a Bentley belonging to his brother, even though it was in the basement garage of his condominium complex.

The next day, Gorman removed approximately $100,000 from the trunk of the Bentley and had it removed from the garage.

Called to testify before a grand jury investigating his brother, Gorman said he never had a Bentley in his condominium garage.

As a result, he was charged with perjury in Indiana federal court, and the government sought to introduce evidence of Gorman’s theft of the Bentley. Gorman objected that the evidence was impermissible “other bad acts” evidence under FRE 404(b).

But the district court admitted the evidence under the inextricable intertwinement doctrine, reasoning that the evidence illuminated Gorman’s motivation to lie.

After the jury found Gorman guilty, he appealed, but the Seventh Circuit affirmed.

Acknowledging that it has traditionally allowed admission of evidence under the doctrine, the court defined it as follows: “The inextricable intertwinement doctrine is based on the notion that evidence inextricably intertwined with charged conduct is, by its very terms, not other bad acts and therefore, does not implicate Rule 404(b) at all (emphasis in original).”

Although the doctrine is longstanding, the court noted that, in recent years, it has cast doubt on its viability, and suggested that evidence which is not direct evidence of the crime itself is usually “propensity evidence simply disguised as inextricable intertwinement evidence.”

Turning to the facts at hand, the court held that the evidence of Gordon’s theft of the car and its contents was properly admissible as direct evidence.

The court reasoned, “Because the basis for the perjury charge was that Jamarkus denied ‘having’ the car in his garage, his theft of the car and extrication of the money from within were direct evidence of his false testimony.”

Accordingly, the court affirmed admission of the evidence, although on different grounds.