In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3010
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMARKUS G ORMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-0156—Sarah Evans Barker, Judge.
A RGUED A PRIL 6, 2010—D ECIDED JULY 28, 2010
Before K ANNE, R OVNER, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Jamarkus Gorman was con-
victed 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.
2 No. 09-3010
I. B ACKGROUND
In June 2007, federal law enforcement agents began
investigating the drug activities of Jermoine Gorman.1
After Jermoine was arrested for drug trafficking, fed-
eral 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 Condo-
minium Complex, along with keys to and pictures of a
Bentley. After contacting the complex, officials discov-
ered 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 traf-
ficking, 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
1
Jermoine Gorman is Appellant Jamarkus Gorman’s cousin.
We will refer to the former as “Jermoine” and the latter as
“Jamarkus.”
No. 09-3010 3
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 con-
taining 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. Unsur-
prisingly, 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
2
Although there is a dispute in the record as to whether
Jamarkus showed officers the entire garage or only a portion
of it, it is undisputed that officers did not locate the Bentley
in the garage that day.
3
There is some debate about whether Jamarkus leased the
tandem spots numbered 31 or the tandem spots numbered 24.
The leasing agent testified that Jamarkus leased the spots in
slot 24, while the maintenance technician testified that Jamarkus
(continued...)
4 No. 09-3010
Later that same afternoon, a Friday, condominium
maintenance technician Kevin McCray saw Jamarkus
fiddling with the trunk of the Bentley. Jamarkus ex-
plained 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 disappear-
ance, Jamarkus had enlisted the help of a handful of in-
dividuals in removing the Bentley from the garage. These
individuals were Chavis Taylor; two tow truck drivers,
Tyrone Whitson and Suglett Miller; two crooked Indi-
anapolis 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 partici-
pants to the garage, using the key pad to enter. He in-
structed 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 condo-
3
(...continued)
was assigned the spots in slot 31. Because residents did not
always park in their assigned spots, and because the car was
parked in slot 31 both when officers arrived and when the
subsequent theft of the vehicle occurred, it is evident that
regardless of his parking assignment, Jamarkus utilized the
spaces in slot 31.
No. 09-3010 5
minium 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 investiga-
tion, 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 pro-
ceeded to question Jamarkus about the presence of a Bent-
ley in his Lion’s Gate garage and its subsequent removal.
The statement serving as the basis for Jamarkus’s even-
tual perjury conviction occurred during this exchange:
6 No. 09-3010
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 encom-
passing 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 sup-
press the evidence, arguing that the theft itself was im-
permissible “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 evi-
dence of the theft was admissible under the inextricable
intertwinement doctrine. Therefore, Rule 404(b)’s lim-
itations were inapplicable. The court reasoned that the
No. 09-3010 7
evidence provided proof of the perjury and illumi-
nated Jamarkus’s motivation to lie. The court thus ad-
mitted 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. A NALYSIS
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 be-
8 No. 09-3010
yond 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 testi-
mony 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 unrespon-
sive yet literally true answer will not sustain the convic-
tion. Bronston v. United States, 409 U.S. 352, 356-58, 362
(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 predom-
inant 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 an example of mental gymnastics, but with-
out the sanction of reason or the warrant of law.”).
And in any event, our own determination of the
meaning Jamarkus ascribed to “have” means little in this
context, when Jamarkus was convicted by a jury of his
peers. We agree initially with Jamarkus that “to have” has
No. 09-3010 9
more than one meaning. See Webster’s Third New Interna-
tional Dictionary 1039 (Philip Babcock Gove ed., 3d ed.
1986). When a word has more than one potential
meaning, it must be examined in context to determine
the meaning the defendant ascribed to it. United States v.
Williams, 536 F.2d 1202, 1205 (7th Cir. 1976). As Jamarkus
correctly points out, the fault for unclear, ambiguous, or
vague answers rests with the questioner. Bronston, 409
U.S. at 360. But what Jamarkus ignores is that our prece-
dent dictates that even when a question or answer is
ambiguous, a conviction may still be upheld if a jury has
been called upon “to determine that the question as the
defendant understood it was falsely answered . . . .” United
States v. Scop, 940 F.2d 1004, 1012 (7th Cir. 1991) (internal
quotation marks omitted).
What meaning Jamarkus ascribed to the question and
whether his denial was knowingly false were questions
within the jury’s province. Id. The jury necessarily deter-
mined that Jamarkus understood “have” as signifying
possession, and yet he readily and knowingly made a
false denial. Under these circumstances, we conclude
that any rational trier of fact could have found the ele-
ments of perjury beyond a reasonable doubt. See Melendez,
401 F.3d at 854.
Yet Jamarkus asserts that even if “have” means mere
possession, he did not possess the vehicle. We agree
with the government, however, that there is ample evi-
dence of conduct that is consistent with Jamarkus’s pos-
session of the Bentley. First, Jamarkus stored the car
and sought to protect it. This is evidenced by his rental
10 No. 09-3010
of the condominium unit, his secured access to the unit
and the garage, his request that the maintenance tech-
nician watch over his high-end cars, and his effort to
conceal the Bentley from law enforcement officers.
Additionally, Jamarkus at least implicitly claimed the
Bentley as his own on two occasions. On the first oc-
casion, he told McCray that he was bringing two “fancy”
vehicles into the garage, and asked McCray, whose
office was close to parking spot 31, to watch over the
vehicles. On the second occasion, when McCray saw
Jamarkus near the trunk of the Bentley, Jamarkus
claimed to have locked “his” keys in the trunk.
Finally, in addition to storing the car, protecting it, and
claiming it as his own, Jamarkus definitely exercised
control over the vehicle when he orchestrated its
removal from the garage. But Jamarkus argues that
because he had to steal the vehicle to gain access to its
contents, he could not have owned or possessed the
Bentley. Even though this argument is true with regard
to legal ownership, it does not negate the fact that
Jamarkus possessed the vehicle by storing it in a garage
in his gated community. The fact that he had to take
control of the Bentley to access its contents does not,
by itself, mean that Jamarkus did not “have” the vehicle
in his Lion’s Gate garage. At the very least, when the
car was placed on the flatbed in the garage at
Jamarkus’s direction, it was, for all intents and pur-
poses, in Jamarkus’s possession.
Although certainly a clever tactic, Jamarkus’s argument
about the meaning of the word “have” stretches and
No. 09-3010 11
distorts the normal meaning of that word. This is
especially true in light of Jamarkus’s actions, which
were consistent with possession. To now claim that he
did not “have” the Bentley in his garage requires a
sizeable leap, to be sure. The jury was unwilling to
make that leap, and we are unwilling to disturb its con-
clusion.
B. Admission of Evidence
Jamarkus also challenges the admission of evidence
relating to his theft of the Bentley, arguing that the
only purpose of this evidence was to prove propensity,
an improper purpose under the Federal Rules of Evi-
dence. Fed. R. Evid. 404(b). We review a district court’s
admission of evidence for an abuse of discretion. United
States v. Joseph, 310 F.3d 975, 978 (7th Cir. 2002). We
will reverse an evidentiary ruling only when the
record contains no evidence on which the district court
rationally could have based its ruling. United States v.
Conley, 291 F.3d 464, 472 (7th Cir. 2002).
We start with the premise that direct evidence of a
crime is almost always admissible against a defendant. See
Fed. R. Evid. 401, 403 (acting as the primary constraints
on the admission of direct evidence). Sometimes, how-
ever, the government will seek to introduce evidence
that is not direct evidence of charged conduct, but is
instead evidence of “other bad acts.” In the latter case,
Federal Rule of Evidence 404(b) generally bars the ad-
mission of other bad acts evidence used to prove a defen-
dant’s character. But the fact that a piece of evidence
12 No. 09-3010
details a defendant’s prior bad act does not preclude
the evidence’s admission for some other purpose. In
fact, prior bad acts may be admissible to prove a defen-
dant’s motive, intent, knowledge, preparation, plan,
identity, or absence of mistake. Fed. R. Evid. 404(b). When
evidence is admitted under Rule 404(b), however, it
may only be used for the purpose for which it is explicitly
offered; use of the evidence to show propensity is still
prohibited. Id.
This circuit has also traditionally allowed the admis-
sion of evidence under the “inextricable intertwinement”
or “intricately related” doctrine. See United States v.
Conner, 583 F.3d 1011, 1018 (7th Cir. 2009). 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. United States v. Luster, 480
F.3d 551, 556 (7th Cir. 2007); United States v. Simpson, 479
F.3d 492, 500 (7th Cir. 2007). “In other words, evidence
admitted under this doctrine lie[s] outside the purview
of the Rule 404(b) character/propensity prohibition, and
is not subject to its constraints regarding the manner
in which the evidence may be used.” Conner, 583 F.3d at
1019 (internal quotation marks and citations omitted)
(alteration in original).
Even if evidence is initially deemed admissible under
any of these three doctrines, however, that evidence
must still pass muster under Rule 403’s balancing test to
actually be admitted against a defendant. Simpson, 479
F.3d at 500 (discussing Rule 403’s interplay with the
No. 09-3010 13
inextricable intertwinement doctrine); United States v.
Jobson, 102 F.3d 214, 220 n.4 (6th Cir. 1996) (noting that
direct evidence is subject only to Rule 401’s relevancy
requirements and Rule 403’s balancing test); Fed. R. Evid.
404(b) Sen. Comm. Report, S. Rep. No. 1277, 93d Cong., 2d
Sess., 24 (1974) (explaining that Rule 404 operates in
conjunction with Rule 403). To make this determination,
a court must weigh whether the evidence’s probative
value is substantially outweighed by the danger of
unfair prejudice to the defendant. Fed. R. Evid. 403. Only
if the court determines that Rule 403’s balancing test
weighs in favor of admission is the disputed evidence
then placed before the jury.
The admitted evidence that Jamarkus disputes relates
to his theft of the Bentley and his recovery of money
from its trunk. Much of this evidence was in the form
of witness testimony, including a statement made by
Edwards to Taylor. With the exception of Edwards’s
statement to Taylor, the government successfully sought
admission of the contested evidence by arguing that it
was inextricably intertwined to Jamarkus’s charged
perjury conduct. 4 Jamarkus, on the other hand, argued
4
With regard to the statement that Edwards made to Taylor,
Jamarkus conflates the argument that it was admitted by way
of Rule 404(b)’s exception for evidence of intent with the
argument that it was admitted as non-hearsay under Rule
801(d)(2). In fact, the statement was admitted under both
Rule 404(b) and under Rule 801(d)(2)(E) as a non-hearsay
statement by a co-conspirator in furtherance of the conspiracy.
(continued...)
14 No. 09-3010
that this conduct was not inextricably intertwined with
his charged perjury, but rather, was evidence of prior
bad acts tending only to prove his propensity to com-
mit perjury. We address these contentions now.
We have recently cast doubt on the continuing viability
of the inextricable intertwinement doctrine, finding that
“[b]ecause almost all evidence admitted under this doc-
trine is also admissible under Rule 404(b), there is often
‘no need to spread the fog of “inextricably intertwined”
over [it].’ ” Conner, 583 F.3d at 1019 (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 ‘inciden-
4
(...continued)
This statement certainly was admitted properly under
Rule 801(d)(2)(B), and although that is sufficient, we note that
it was also proper under Rule 404(b) because it demonstrated
Jamarkus’s intent to have Taylor assist him with the theft. And
as we will affirm the admissibility of the theft evidence below,
we find that the evidence was proper under Rule 404(b) as well.
Thus, the statement was properly admitted under either rule.
No. 09-3010 15
tally involve’ the charged offense or ‘explain the circum-
stances.’ ”).
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, see
United States v. Fleming, 290 F. App’x 946, 948 (7th Cir.
2008) (unpublished); see also Lane, 323 F.3d at 579 (ex-
plaining that Rule 404(b) is inapplicable where evidence
is either direct proof of charged conduct or inextricably
related to charged conduct), 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 distinc-
tion has traditionally existed, the inextricable inter-
twinement 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
16 No. 09-3010
usefulness. Henceforth, resort to inextricable intertwine-
ment is unavailable when determining a theory of ad-
missibility.5
Turning now to the disputed evidence in this case,
the district court proffered two rationales for application
of the inextricable intertwinement doctrine to the evi-
dence of Jamarkus’s theft of the Bentley and his extrica-
tion of money therefrom. The court found both that the
evidence completed the story of the perjury and that it
explained to the jury Jamarkus’s motivation to lie. But
we think that resort to inextricable intertwinement in
this case was unnecessary. 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. The fact that Jamarkus removed the Bentley
from the garage demonstrated that he “had” a Bentley
in the garage in the first instance. Therefore, this evi-
dence was properly admitted, albeit as direct evidence
rather than inextricable intertwinement evidence.
Even though the district court admitted the evidence
under the latter doctrine, however, it makes no practical
difference to the outcome of admissibility. Under an
abuse of discretion standard of review, as long as the
admission was proper, the fact that the rationale for
admission may have been blurred matters little. See
5
Because our decision overrules our 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.
No. 09-3010 17
Conley, 291 F.3d at 472 (noting that evidentiary rulings
will be affirmed if there is a rational basis in the record
for the district court’s finding). The evidence was
properly admitted, and any confusion of the proper
channel of admissibility is insignificant to that ultimate
outcome.
Because we agree with the district court that the
challenged evidence was properly admitted, the only re-
maining question is whether the probative value of that
evidence was substantially outweighed by any unfair
prejudicial effect on Jamarkus. Jamarkus contends that
the district court failed to properly weigh the evidence
as required by Rule 403. He argues instead that the court
found that because the evidence was inextricably inter-
twined, it was probative to his charged conduct, thus
conflating the separate inquiries of admissibility and
exclusion.
Although “[t]he balancing of probative value and
prejudice is a highly discretionary assessment, and we
accord the district court’s decision great deference, only
disturbing it if no reasonable person could agree with
the ruling,” United States v. Thomas, 321 F.3d 627, 630 (7th
Cir. 2003), we have previously cautioned district courts
to avoid applying the inextricable intertwinement doc-
trine in a way that circumvents Rule 403’s dictates,
cf. United States v. Strong, 485 F.3d 985, 990 (7th Cir. 2007)
(noting that evidence otherwise admissible under the
inextricable intertwinement doctrine must still pass
muster under Rule 403).
In this case, the district court’s assessment of the proba-
tive value versus the relative prejudice might have
18 No. 09-3010
been better articulated with an eye toward the factors
expressed in Rule 403 itself, but this alone does
not mean that the court failed to perform the requisite
balancing. While the court may have used language
appearing to conflate the inquiry in Rule 404 with that
of Rule 403, we think the court’s ultimate conclu-
sion was correct—the probative value of the evidence
was not substantially outweighed by its potential preju-
dicial effect.
Under similar circumstances, in United States v. Price,
we explained:
In light of its probative value, we cannot say that
the evidence . . . was substantially outweighed by
the danger of unfair prejudice. It is true that the
trial judge did not expressly state his reasons in
the balancing of probative value and unfair preju-
dice under Rule 403, which he should have done.
We will not, however, presume the wrong reasons,
when the correct ones are apparent.
617 F.2d 455, 460 (7th Cir. 1980) (citations omitted).
We think that a similar caution and conclusion are also
appropriate here. Although the district court might have
better explained the rationale behind its Rule 403 con-
clusion, it is evident to us that the court’s ultimate rea-
son for admitting the evidence was that the probative
value was not significantly outweighed by the preju-
dicial impact.
And though we certainly understand the reason for
Jamarkus’s assertion that the district court confused the
inquiry, we ultimately cannot agree that this affected
No. 09-3010 19
the outcome. The evidence in question was necessary
to prove the falsity of Jamarkus’s grand jury testimony. It
proved his intentional misrepresentation, and therefore,
had great probative value.
In contrast, the prejudice to Jamarkus, although present,
was significantly less. Certainly, there was prejudice in
the sense that the evidence tended to show Jamarkus’s
guilt. But that is not the prejudice with which Rule 403
is concerned. See United States v. Nolan, 910 F.2d 1553, 1558-
59 (7th Cir. 1990).
Instead, Rule 403 seeks to prevent the prejudice re-
sulting from improper use of the evidence. Fed. R. Evid.
403, Advisory Comm. Note. In this case, we agree with
Jamarkus that there was some risk that the jury would
misuse the evidence of the theft to determine guilt for
the crime of perjury. But to warrant exclusion under
Rule 403, the “probative value [of evidence] must be
insignificant compared to its inflammatory nature so
that the evidence unfairly prejudices the defendant.” United
States v. Gougis, 432 F.3d 735, 643 (7th Cir. 2005) (internal
quotation marks omitted).
Because we are more prone to “tolerate some risk of
prejudice” when the evidence at stake is significantly
probative, United States v. Vargas, 552 F.3d 550, 557 (7th
Cir. 2008), we find that the evidence here was properly
admitted. Any lack of explanation on the district court’s
part is excusable for the reasons stated above. Ac-
cordingly, Jamarkus’s argument that the admission of
evidence was improper fails.
20 No. 09-3010
III. C ONCLUSION
Because there was ample evidence to support the
finding that Jamarkus perjured himself with regard to his
possession of the Bentley, his appeal in that regard is
without merit. Additionally, the admission of the evi-
dence relating to Jamarkus’s theft of the car was direct
evidence of his charged perjury conduct and its probative
value was not substantially outweighed by any risk of
unfair prejudice. For these reasons, Jamarkus’s convic-
tion is A FFIRMED.
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