Autobiographical “Fiction” as Intrinsic Evidence “Necessary to Complete the Story” of a Drug Conspiracy

Introduction

In United States v. Kenneth Pertillo (11th Cir. Jan. 8, 2026) (unpublished), the Eleventh Circuit affirmed the drug-trafficking convictions and life sentences of Kenneth Pertillo and Johnifer Dernard Barnwell. The case arose from a multi-year, wiretap-driven investigation into a Macon, Georgia drug-distribution ring that culminated in a coordinated execution of search warrants at eleven locations and the seizure of large quantities of heroin, fentanyl, methamphetamine, and cocaine base.

On appeal, the defendants challenged several evidentiary rulings and (as to Barnwell) the sentencing judge’s failure to recuse. The central issues were (i) whether the district court improperly admitted: (a) Pertillo’s prior meth sale (Rule 404(b)), (b) Barnwell’s alleged gang affiliation (Rule 404(b)), and (c) notebooks containing a draft story by Pertillo (treated as intrinsic evidence), and (ii) whether comments at sentencing triggered mandatory recusal under 28 U.S.C. § 455(b)(1).

Summary of the Opinion

Prior drug sale (Pertillo): Affirmed admission under Fed. R. Evid. 404(b) because prior drug activity was highly probative of intent and not substantially outweighed by unfair prejudice.
Gang affiliation (Barnwell): Affirmed admission under Rule 404(b) to show relationship among conspirators and “mode of doing business,” with prejudice mitigated by limiting the government from portraying the gang as known to be violent.
Notebooks (Pertillo): Affirmed admission as intrinsic evidence—“necessary to complete the story”—rather than extrinsic “other acts” evidence governed by Rule 404(b), and not unfairly prejudicial under Rule 403.
Recusal (Barnwell): No plain error in failing to recuse; the judge’s comment showed only prior familiarity with a house’s location (and having been inside it at some earlier time), not personal knowledge of disputed evidentiary facts about the raids or searches.

Analysis

Precedents Cited

Standards of review (deference to trial courts)

United States v. Macrina, 109 F.4th 1341 (11th Cir. 2024): Used for the baseline proposition that evidentiary admissibility decisions are reviewed for abuse of discretion, including Rule 403 balancing. The panel invoked Macrina to emphasize appellate restraint—especially where Rule 403 calls are fact-bound.
United States v. Calhoon, 97 F.3d 518 (11th Cir. 1996): Quoted via Macrina for the proposition that reversal under Rule 403 occurs only when the district court’s decision was “clearly” an abuse of discretion.
United States v. Nerey, 877 F.3d 956 (11th Cir. 2017): Confirmed that Rule 404(b) admissions are likewise reviewed for abuse of discretion.
United States v. Lopez, 649 F.3d 1222 (11th Cir. 2011): Supplied two important framing points: (i) on abuse-of-discretion review the appellate court views evidence “in a light most favorable to its admission,” and (ii) exclusion under Rule 403 is an “extraordinary remedy,” strengthening the presumption in favor of admissibility.

Rule 404(b) framework and drug-intent evidence

United States v. LaFond, 783 F.3d 1216 (11th Cir. 2015): Provided the Eleventh Circuit’s three-part test for Rule 404(b) evidence: relevance to a non-character issue; Rule 403 balance; and sufficient proof that the defendant committed the other act. The panel applied this structure to Pertillo’s prior drug sale.
United States v. Harding, 104 F.4th 1291 (11th Cir. 2024): Played a dual role. First, it reinforced the common Eleventh Circuit view that in drug conspiracies, a not-guilty plea places intent in issue, making prior drug offenses “highly probative.” Second, Harding supplied the definition of “necessary to complete the story of a crime” (quoted later in the intrinsic-evidence discussion).

Gang-affiliation evidence (relationship and conspiracy context)

United States v. Ford, 761 F.3d 641 (6th Cir. 2014) and United States v. Johnson, 28 F.3d 1487 (8th Cir. 1994): Cited for the proposition that gang affiliation may be relevant in conspiracy cases because it demonstrates relationships among participants—often a key disputed issue. Although not binding, these cases buttressed the panel’s conclusion that such evidence can have legitimate, non-character probative value.
United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003), abrogated on other grounds by Rehaif v. United States, 588 U.S. 225 (2019): Jernigan was used to show the Eleventh Circuit’s prior approval of gang-related evidence when it helps explain circumstances tied to charged conduct (there, linkage of a firearm to the defendant via gang-color bandana). The panel acknowledged Rehaif’s abrogation on “other grounds,” signaling that Jernigan remains useful on the evidentiary point.
United States v. Dohan, 508 F.3d 989 (11th Cir. 2007): Used to reject Barnwell’s limiting-instruction argument: absent a request, the failure to give a limiting instruction is not an abuse of discretion.

Intrinsic evidence vs. Rule 404(b) “other acts”

United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007) (quoting United States v. Baker, 432 F.3d 1189 (11th Cir. 2005)): Provided the Eleventh Circuit’s definition of evidence “outside the scope of rule 404(b)”—including evidence “necessary to complete the story” or “inextricably intertwined” with the charged conduct. This doctrinal hook enabled the panel to affirm admission of Pertillo’s notebooks without applying Rule 404(b).
United States v. Holt, 777 F.3d 1234 (11th Cir. 2015): Quoted (through Harding) for what it means to “complete the story”: evidence that explains “context, motive, and set-up of the crime,” or reveals important details of the scheme. Holt thereby supported characterizing the notebooks as context-and-motive evidence rather than propensity proof.

Recusal and “personal knowledge of disputed evidentiary facts”

United States v. Berger, 375 F.3d 1223 (11th Cir. 2004): Established that where recusal was not sought below, appellate review is for plain error, raising Barnwell’s burden substantially.
United States v. Scrushy, 721 F.3d 1288 (11th Cir. 2013): Applied 28 U.S.C. § 455(b)(1)—mandatory recusal when the judge has “personal knowledge of disputed evidentiary facts.” The panel used Scrushy to frame the legal test, then held the sentencing remark did not meet it.

Legal Reasoning

1) Pertillo’s prior West Virginia drug sale (Rule 404(b))

The court treated the prior sale as classic Rule 404(b) evidence offered to prove intent, not character. Under United States v. LaFond, Pertillo challenged only the Rule 403 prong (whether probative value was substantially outweighed by unfair prejudice). Relying heavily on United States v. Harding, the court reasoned that by pleading not guilty to a drug conspiracy, Pertillo necessarily put intent at issue, making prior drug dealing “highly probative” and typically not overly prejudicial. A limiting instruction was also given after the evidence was admitted, reducing the risk the jury would misuse it for propensity.

2) Barnwell’s gang affiliation (Rule 404(b))

The panel upheld admission because the affiliation helped explain how conspirators knew and trusted each other—an inherently probative point in a conspiracy prosecution. The court also accepted the district court’s additional rationale that it showed a “mode of doing business.” Importantly, the panel emphasized mitigation of prejudice: the district court restricted the government from introducing evidence that the “gang [was] known by law enforcement to be a violent one.” On the limiting-instruction issue, the panel invoked United States v. Dohan to hold that the district court did not abuse its discretion by not giving an instruction never requested.

3) Pertillo’s notebooks as intrinsic evidence (“necessary to complete the story”)

This is the opinion’s most distinctive evidentiary holding. The notebooks contained a draft story, “MACONGA: From Da Bottom 2 Da Top,” describing a protagonist returning to Macon from federal prison, acquiring multiple “bricks” of cocaine, and fantasizing about quickly making money by converting it into crack for sale. The panel accepted the district court’s finding that the notebooks were intrinsic—outside Rule 404(b)—because they were “necessary to complete the story” of Pertillo’s role: they illuminated context, motive, and set-up, namely an ambition to make quick drug money with associates after imprisonment.

The panel also rejected two defense counterarguments:

Undated writing: The notebooks allegedly lacked dates, but the court found “sufficient references” to real events in Pertillo’s life (e.g., GED, release from prison) to situate the writing temporally and connect it to the charged scheme.
Rule 403 cumulativeness: The panel agreed with the district court that the notebooks were not cumulative because they uniquely evidenced Pertillo’s motive for joining the conspiracy.

4) Recusal under 28 U.S.C. § 455(b)(1)

Barnwell argued that the judge’s statement at sentencing—having previously been inside one of the houses “right across the street” from the judge’s church—implied personal observation of the raid. Reviewing only for plain error under United States v. Berger, the panel read the remark narrowly: it indicated prior, unrelated familiarity with a location, not personal knowledge of disputed facts about the investigation or search. Under United States v. Scrushy and § 455(b)(1), that was insufficient to require recusal.

Impact

Writings as “intrinsic” motive/context evidence: The decision reinforces that personal writings—even stylized or fictionalized—may be admitted as intrinsic evidence when sufficiently tethered to the charged scheme and used to explain “context, motive, and set-up.” Prosecutors may cite the case to argue that autobiographical narratives can illuminate a defendant’s role and motivations without triggering Rule 404(b).
Gang evidence in conspiracies: The opinion supports admitting gang-affiliation evidence when it explains relationships and operational context, especially where the trial court cabins prejudice (e.g., excluding evidence of violence). Defendants, conversely, should expect courts to view “relationship” evidence as legitimately probative in conspiracy cases.
Limiting instructions are strategic—and must be requested: The ruling underscores a practical appellate point: a defendant who wants a limiting instruction generally must ask for one, or risk forfeiting the argument.
Recusal arguments require a concrete link to disputed facts: Mere geographic or historical familiarity with a location connected to a case will not, without more, amount to “personal knowledge of disputed evidentiary facts.” Failure to seek recusal below also sharply limits appellate relief under plain-error review.

Complex Concepts Simplified

Rule 404(b): Generally bars “other acts” evidence used to show a person’s bad character and that they acted in conformity with it. But it allows other-acts evidence for non-character purposes like intent, knowledge, or plan.
Intrinsic vs. extrinsic evidence: “Extrinsic” evidence is separate from the charged conduct and usually triggers Rule 404(b) analysis. “Intrinsic” evidence is considered part of the story of the charged crime (e.g., necessary context or intertwined facts) and may be admitted without Rule 404(b), though it still must satisfy Rule 403.
Rule 403 balancing: Even relevant evidence can be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Appellate courts give trial judges wide latitude on this balancing.
Limiting instruction: A jury instruction telling jurors the specific purpose for which they may consider evidence (e.g., intent, not propensity). If not requested, appellate courts often will not fault the trial court for not giving one.
Recusal under 28 U.S.C. § 455(b)(1): A judge must step aside if they have personal knowledge of disputed evidentiary facts. General familiarity with a place or parties is not enough; the knowledge must bear on facts being litigated.
Plain error review: A demanding standard applied when a party failed to object in the trial court. The appellant must show an obvious legal error affecting substantial rights.

Conclusion

United States v. Kenneth Pertillo affirms broad trial-court discretion in admitting relationship, intent, and motive evidence in drug conspiracy prosecutions. Its most notable contribution is its approval of admitting a defendant’s semi-autobiographical notebooks as intrinsic evidence “necessary to complete the story,” where the writing parallels the defendant’s circumstances and illuminates the scheme’s context and motive. The decision also illustrates how courts may admit gang-affiliation evidence for non-propensity purposes while managing prejudice through tailored limits, and it clarifies that recusal demands a concrete showing of personal knowledge of disputed facts—especially when reviewed only for plain error.