United States v. Gill, No. 15-4444-cr(L) (Livingston, Chin, Carney), a decision in a drug trafficking and murder conspiracy appeal, offers several interesting rulings on evidentiary and trial practice issues that arose out of a 4-week trial. As we often see, these decisions may originate in the world of violence crime and narcotics, but the legal rules established in these cases will also apply in the world of business crimes.

The appeal concerns the convictions of three brothers, Brian Gill, David Gill, and Samuel Waco McIntosh. All three were convicted of committing and conspiring to commit a 1994 drug-related murder, and Brian and David were also convicted of conspiring to distribute at least 280 grams of cocaine base from 2011 to 2013.

In denying the defendants’ first challenge to their conviction, the Second Circuit held that it was not plain error to fail to charge drug quantity in the drug-related murder count of the superseding indictment because the trial judge adequately instructed the jury that it was required to find that at least 280 grams of cocaine base was involved in order to convict. Judge Chin, writing for the panel, agreed with the defendants that “an indictment charging an aggravated drug offense under § 841(b)(1)(A) is defective if it does not factually allege the drug quantity involved in the charged offense.” But, plain error review applied because the defendants had not raised the defect at trial. Under that more deferential standard, the defendants couldn’t show that their substantial rights were affected because the district court instructed the jury that it must find drug quantity for all three counts, and reiterated the instruction again when the defendants raised a concern that the verdict sheet did not allege drug quantities for the murder counts. It may seem odd to someone who does not practice in this area to imagine that an indictment that does not charge the elements of the offense could ever be acceptable, but the proper charge given to the jury cures the error.

Brian and Samuel also raised an evidentiary challenge to testimony that in the early 1990s in Baltimore they conspired to sell crack, carried guns, and conspired to kill rival drug dealers. The defendants argued that this was impermissible propensity evidence under Federal Rule of Evidence 404(b) and that it was prejudicial under Rule 403. The general rule is that evidence of prior crimes cannot be introduced to prove that the defendant is more likely to have committed the crime charged. Rule 404(b) has long been a dangerous area for prosecutors: convictions are reversed when the evidence goes to propensity and not some permissible purpose. When admitted, it can be very powerful evidence against the defense because juries, one suspects, inevitably will be unable to set out of their mind the notion that a defendant who did something bad in the past may have done something bad this time too.

Here, the Second Circuit agreed with the government that the evidence was introduced not as propensity evidence but for the permissible purpose of showing Brian and Samuel’s “longstanding relationship of trust as brothers and co-conspirators,” as well as to show knowledge and intent. The relationship issue was disputed at trial, with Brian claiming he only sold drugs in a “free zone” where it was “every man for himself.” Coupled with a limiting instruction from the court, and the government’s careful references to the evidence in closing only as it related to the brothers’ relationship, the evidence was admissible and not unduly prejudicial. While the opinion is logical and persuasive, the holding might leave a reader somewhat dubious: Did the government really need 404(b) evidence to support the notion that two brothers have a close relationship? Given the similarity between the conspiracies, were the jurors able to perform the “mental gymnastics” required by the district court’s instruction? See United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994). These are fair questions.

A more unusual evidentiary question was the admissibility of out-of-court statements under the hearsay exception for statements against penal interest set forth in Federal Rule of Evidence 804(b)(3). Such a statement is admissible if, at the time it was made, it had so great a tendency to expose the declarant to criminal liability that no reasonable person would have made the statement unless it were true, and if there is corroborating evidence of trustworthiness. The first out-of-court statement came from the murder victim, who told another drug dealer before the murder that the brothers had broken into his car, stolen his drugs and money, and beaten him up. The statement implicated the murder victim in drug activity, and so was against his own penal interest, and the statement was trustworthy because it was made to any ally and did not appear to be an attempt to shift culpability away from the speaker. The seconds set of statements were made by Brian and Samuel, who were unavailable at trial based on their invocation of the Fifth Amendment right not to testify. A cooperating witness testified that Brian had “expressed concern” that a witness to the murder was still alive. Samuel responded that there was no need to worry because no one was talking about the murder. The statements were against penal interest because they implicated the speakers in the murder. They were trustworthy because they were made among brothers, and there was corroborating evidence that the murders had occurred and the witness was present. For those readers who wonder if this decision raises any issues under Crawford v. Washington, 541 U.S. 36, 68 (2004), the answer is no: statements against penal interest are not testimonial and therefore their introduction does not raise Confrontation Clause issues. See United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004).

The Court also disposed of all three brothers’ challenges to the sufficiency of the evidence. Citing the extensive evidence at trial, including the testimony of cooperating witnesses who were either co-conspirators or rival dealers, the Court found that a rational trier of fact could have found that all of the elements of the offense had been proven.

Finally, David argued that a rival drug dealer who testified for the government had perjured himself by testifying that he saw David do drug deals in the early ’90s. The Court rejected that argument because David, though incarcerated for much of that time period, was not continually detained and so the testimony was not necessarily false.