7th Circuit upholds Indy man’s drugs, firearm convictions

An Indianapolis man convicted of multiple drug and firearm felonies failed to convince the 7^th Circuit Court of Appeals that there were evidentiary or constitutional errors in his case that warranted a reversal.

Defendant-appellant Michael Perryman was arrested in the spring of 2018 after a search warrant executed at his home revealed fentanyl, baggies, a digital scale and a loaded AR-15 rifle. After being read his Miranda rights, Perryman admitted the drugs were his and provided the name of his supplier, though he said the gun “belonged to a girlfriend” Maurita Thomas.

During a post-arrest conversation, Perryman asked Thomas to lie about the gun, with whom he used to live and had bought the weapon with at a gun show. Thomas initially agreed but later admitted she had lied to protect Perryman.

Perryman was indicted on three counts related to the drugs and firearm. Prior to trial, the government moved to exclude questioning about the disciplinary record of Sgt. Clifton Jones, an Indianapolis police officer who participated in the search of Perryman’s home. The discipline case, which stemmed from an unrelated investigation, resulted in a written reprimand, which Perryman wanted to use to impeach Jones’ credibility.

But the U.S. District Court for the Southern District of Indiana declined to allow that line of questioning, finding any probative value was outweighed by the danger of unfair prejudice, misleading the jury and confusing the issues. Thus, when Perryman tried to impeach Jones with his disciplinary record at trial, the government objected and the district court sustained the objection.

A jury convicted Perryman on all counts, and he was sentenced to 19 years in prison followed by five years of supervised release.

On appeal, Perryman challenged both the sufficiency of the evidence and the exclusion of Jones’ disciplinary record from questioning. But the 7^th Circuit affirmed in full in United States of America v. Michael Perryman, 20-1453.

Turning first to the sufficiency of the evidence, the appellate court rejected Perryman’s argument that he did not “possess” the fentanyl found in his home.

“Here, a reasonable jury could easily conclude that Perryman constructively possessed the fentanyl by his exclusive control over the drugs,” Judge Amy St. Eve wrote. “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 his confession was false,” St. Eve wrote. “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 also argued the rifle was not used “in furtherance” of any drug crime, as he was charged. But noting the gun was kept just steps away from the drugs and was accessible only by going through the “drug-filled master bathroom,” among other circumstances, the 7^th Circuit said the evidence “more than supports the jury’s verdict.”

Perryman’s final evidentiary challenge argued that the government failed to show he knowingly possessed a firearm to prove that he was a felon in possession of a firearm, as charged.

But as with the other evidentiary challenges, “(h)ere, the evidence permitted a rational jury to find that Perryman constructively possessed the weapon discovered in his closet,” St. Eve wrote. Perryman lived in the home where the weapon was found, the judge noted, and no one else lived there, meaning “a jury can reasonably assume that he controls the weapons present there.”

On the issue of the disciplinary case against Jones, Perryman argued that the exclusion of that evidence violated his rights under the confrontation clause. In rejecting that argument, the appellate court noted the line of questioning was related to a disciplinary action that had nothing to do with Perryman’s case.

“Contrary to Perryman’s many assertions, Officer Jones’s reprimand did not involve tampering with evidence,” St. Eve wrote. “Rather, Officer Jones’s participation in a police investigation fifteen years ago was questioned, which the Disciplinary Board decided warranted only a written warning. Perryman has not shown, nor could he, that this irrelevant and dated offense relates to his case.

“… Given that a core confrontational value was not implicated,” St. Eve concluded, “the district court properly exercised its ‘wide latitude’ under the Confrontation Clause to exclude the evidence.”

In a footnote, St. Eve added that Perryman had filed a pro se brief raising additional concerns about his sentence. But the appellate court chose to exercise its discretion to “reject a pro se brief without considering the issues argued when a defendant is represented by counsel.”