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Second Circuit Partially Affirms Evidentiary Ruling on Interlocutory Appeal in Decision Illustrating the Importance of Proofreading

In United States v. Brown, 16-3468-cr (Leval, Hall, Chin) the Second Circuit affirmed in part and vacated in part via summary order a ruling excluding evidence related to a firearm that had not been identified in the indictment.  The ruling is the result of a typographical error in the original indictment that went uncorrected in four superseding indictments issued over the course of nearly five years.

This case arises out of an alleged narcotics conspiracy.  Kenneth Pettway and Demetrius Black were charged with multiple crimes, including conspiracy, multiple counts of possession of firearms in furtherance of the conspiracy, and possession with intent to distribute heroin and cocaine.  Pettway was also charged as a felon in possession of firearms and .32 caliber ammunition.  The original indictment included charges related to unidentified firearms, in addition to a “J.P. Shuer & Suhl CHL 7.65 mm pistol with no serial number.” Unfortunately for the government, this description of the gun was inaccurate, as there was evidence showing that the defendants possessed a “J.P. Sauer & Sohn .32 caliber Model 38 pistol with serial number 355206.”  The two firearms have similar names and a .32 caliber pistol is known in Europe as a 7.65 mm pistol, but in this case, the two firearms are different firearms.  This type of firearm may be best known for its appearance in the movie Dr. No, in which Bond is equipped with a Walther PPK, 7.65 mm, with a silencer.[1]

In any event, although the government was aware of the correct description of the gun, it failed to correct the error in the original indictment, and subsequently filed four superseding indictments over four and a half years, each of which included the inaccurate description.  On the eve of trial, the government recognized this error and moved to amend the indictment or to instruct the jury that a misspelling in the indictment is not fatal.  The District Court denied all aspects of the motion and ruled sua sponte that all evidence of the defendants’ possession of the .32 caliber pistol was inadmissible.  The government filed an interlocutory appeal before trial challenging this evidentiary ruling.[2]

The Court noted that the evidentiary ruling should be viewed as having two distinct parts.  To the extent that the District Court excluded evidence of the .32 caliber pistol for the purpose of proving that the defendants’ possessed a “J.P. Shuer & Suhl CHL 7.65 mm pistol with no serial number,” the Court affirmed the ruling in light of the government’s inordinate delay and failure to correct the error in any of the four superseding indictments.  The Court was not inclined to give the government a “do over” given the procedural history.

Nonetheless, the Court vacated the ruling to the extent that it excluded evidence of the .32 caliber pistol for any other purpose.  In particular, the Court noted that evidence of gun possession is routinely admitted to prove knowledge and intent with respect to narcotics charges and the lower court gave no explanation of why the gun was inadmissible for that purpose.  The Court further noted that the lower court similarly failed to explain why the .32 caliber pistol should be inadmissible to prove the charges related to unidentified firearms or Pettway’s possession of .32 caliber ammunition.  The Court held that the error in the indictment did not mislead the defendants to justifiably believe that there would be no evidence of possession of the .32 caliber pistol for these other purposes. 

The Court was careful to explain that its ruling did not require the District Court to admit the gun for any of these purposes.  Rather, the case was remanded for additional proceedings so that the district court could decide before trial whether to permit the admission of the gun for those other purposes discussed above.  In closing, however, the Court observed that the present record showed no reason why the .32 caliber pistol would be irrelevant to the remaining charges or why the defendants would be prejudiced by its admission for the purpose of proving those charges.

This case serves as a reminder of the importance of attention to detail and illustrates the Court’s willingness to impose consequences for unnecessary delay in correcting errors in the official record.  Words matter and if the government cannot describe the evidence in its “to wit” clause, there can be consequences in the defendant’s favor.

-By Jackie Bonneau and Harry Sandick

[1] Dennis Adler, The Daily Caller (July 5, 2015), found at (last visited June 1, 2017).

[2] The government did not seek interlocutory review of the District Court’s ruling on its motion to amend the indictment or provide a corrective instruction to the jury because the Second Circuit lacks jurisdiction over such rulings on interlocutory appeal.  See 18 U.S.C. § 3731.