On September 25, 2013, after a trial held in the U.S. District Court for the Southern District of New York, Earl Pierce, Melvin
Colon, and Joshua Meregildo were convicted of, among other things, conspiracy, racketeering, murder,
narcotics trafficking, and firearms offenses, and then appealed. U.S. v.
Pierce, 2015 WL 2166141 (U.S. Court of Appeals for the 2d Circuit 2015).
The U.S. District Court Judge who had the case then “sentenced
Pierce principally to 600 months' imprisonment, Colon principally to life plus
420 months' imprisonment, and Meregildo principally to life plus 60 months'
imprisonment.” U.S. v. Pierce, supra.
The Court of Appeals begins its opinion by explaining that
Pierce, Colon, and Meregildo were
members of a violent street gang, dubbed the Courtlandt Avenue Crew (`CAC’) by
the government, that engaged in the trafficking of crack cocaine, heroin, and
marijuana in and around the Melrose Public Housing Developments and the Andrew
Jackson Houses (the `Melrose–Jackson Houses’) in the Melrose section of the
Bronx. CAC was formed in 2010 by Terry Harrison, who recruited young men around
the Melrose-Jackson Houses to sell drugs, many of whom -- including Meregildo
and Colon -- were already members of another gang, known as God's Favorite
Children, or `GFC.’
Harrison was shot and killed in 2010 by
an individual working for the rival `321 Organization.’ After Harrison's
murder, Meregildo assumed a leadership role in CAC, providing crack cocaine to
the street dealers until he was arrested in January 2011. After Meregildo was
arrested, Colon took over some of the narcotics operations, supplying crack
cocaine to members of CAC as well as to its customers.
Colon was arrested on the current
charges in September 2011. In addition to their involvement in the extensive
narcotics sales, Pierce, Meregildo, and Colon also actively participated in
violence perpetrated against rival gangs and suspected law enforcement
informants on behalf of CAC.
U.S. v. Pierce, supra.
Next, it outlined the legal proceedings that followed the
arrests:
Pierce, Colon, and Meregildo were
charged along with more than a dozen other alleged members and associates of
CAC, in an indictment filed June 4, 2012. The two-month trial commenced on
October 1, 2012.
As part of its case-in-chief, the
government called forty witnesses, including six cooperating witnesses. Five of
the cooperating witnesses were former members of CAC who testified about the
participation of Pierce, Meregildo, and Colon in the narcotics trafficking and
violence. The government also offered physical evidence, including seized
drugs, drug paraphernalia, and firearms used in the commission of the murders.
Additionally, the government introduced
into evidence social media posts by members of CAC, which alluded to the
narcotics sales and violent acts, including a rap video from Colon's Facebook
page and photographs of his tattoos.
U.S. v. Pierce, supra.
Each of the defendants raised various issues on appeal, in
an effort to have one or more of their convictions reversed, but this post only
focuses on some of the arguments Colon made in his appeal. U.S. v. Pierce, supra. To
begin with, he argued that the evidence
presented at trial was insufficient for
the jury to find him guilty of murdering Delquan Alston while engaged in the
narcotics conspiracy, in violation of 21 U.S. Code § 848(e)(1)(A), though
Colon does not challenge the sufficiency of the evidence with respect to his
committing the underlying murder.
We have held that § 848(e)(1)(A) liability
does not require active involvement in drug distribution. U.S. v.
Santos, 541 F.3d 63 (U.S. Court of Appeals for the 2d Circuit 2008) (`That
[the defendant] did not participate in the narcotics conspiracy in some way
other than carrying out the murders does not undermine the sufficiency of the
evidence that he was a co-conspirator’). `[T]he government need only prove
beyond a reasonable doubt that one motive for the killing . . . was
related to the drug conspiracy.’ U.S. v. Desinor, 525 F.3d 193 (U.S.
Court of Appeals for the 2d Circuit 2008) (emphasis in original).
Parsons testified that on August 27,
2010, he and Colon shot and killed Alston. Parsons was at a restaurant in the
Bronx with Harrison and Colon when Harrison told Colon that Alston was selling
fake crack cocaine to CAC customers, and Alston was rumored to be a law
enforcement informant. Harrison asked Colon and Parsons to kill Alston,
promising to pay them.
On the night of the murder, Colon,
Parsons, and Alston sat on a bench and talked near a Courtlandt Avenue
apartment building. Parsons asked Alston to go buy some rolling paper for
marijuana. Parsons and Colon followed him as he walked to the store. On the
way, Alston stopped to urinate against the wall of a building. When he turned
back around, Colon shot him in the head with a .40 caliber pistol that Parsons
had given to him.
Though Colon does not dispute that he
murdered Alston, he points to testimony by a government witness that he told
someone he met in pretrial detention that he killed Alston not as part of a
contract murder, but because Alston threatened to kill one of Colon's friends.
Colon also contends he could not have been a part of the narcotics conspiracy
because he was released from juvenile detention only a month before Harrison's
death, and was selling drugs independently from CAC, and often in direct
competition with CAC.
At trial, however, the government
presented contrary evidence, including the evidence described above that Colon
killed Alston at Harrison's request because Alston's actions were threatening
CAC's narcotics activity. Hence, the jury could have rationally inferred that
Colon had the requisite intent to commit the murder in aid of the drug
trafficking conspiracy. . . .
U.S. v. Pierce, supra.
As Wikipedia explains, 21 U.S. Code § 848 defines a distinct
crime – “continuing criminal enterprise" – which “targets large-scale drug
traffickers who are responsible for long-term and elaborate drug conspiracies.”
And under 21 U.S. Code § 848(e)(1)(A), anyone who is engaged in or working in
furtherance of a continuing criminal enterprise who “intentionally” kills an
individual “may be sentenced to death.”
In challenging his convictions, Colon also argued that his 1st Amendment rights “were violated when the district court permitted the
government to present as evidence a rap video and images of his tattoos, some
of which he had posted to his Facebook page.”
U.S. v. Pierce, supra. Since Colon “failed to raise these objections
at trial,” the Court of Appeals reviewed the admission of the evidence “for plain error.” U.S. v. Pierce, supra.
The Court of Appeals goes on to explain that the District
Court Judge admitted into
evidence a video that was made in
December 2011 in the Melrose–Jackson Houses and depicted Colon, a cooperating
witness Aubrey Pemberton, and a number of GFC members. In the video, Colon is
seen rapping: `YG to OG / Somebody make somebody nose bleed / I'm OG shoot the
Ruger / I'm a shooter.’ . . .
At trial, Pemberton served as a guide
through the lyrics, testifying that the Young Gunnaz crew, or YG, was feuding
with the OG (formerly the GFC). The video helped establish Colon's association
with members of the enterprise and his motive to participate in the charged
conduct against members of the Young Gunnaz.
The district court also allowed the
government to offer photographs of Colon's tattoos, some of which he had posted
on his Facebook page. One of the photographs was a close-up of Colon's hand,
showing his `Y.G.K.’ tattoo, which stands for `Young Gunnaz Killer.’ In some of
the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating,
according to the government, his desire to harm members of the Young Gunnaz.
Other tattoos depicted in the
photographs introduced at trial included one on his right arm that read
`Courtlandt’; tattoos on his left arm that referenced Meregildo's nicknames
(`Young’ and `Killa’); and one stating `M.I.P. [Mac In Peace] T–Money,’
referring to Harrison, the former leader of CAC.
U.S. v. Pierce, supra.
On appeal, Colon argued that the District Court’s admitting
the
rap video and tattoo images violated
his `1st Amendment rights because courts should not `sustain a conviction that
may have rested on a form of expression, however distasteful, which the Constitution
tolerates and protects.’ Street v. New York, 394 U.S. 576 (1969).
This challenge is meritless, however, because here the speech is not `itself
the proscribed conduct.’ U.S. v. Caronia, 703 F.3d 149 (U.S.
Court of Appeals for the 2d Circuit 2012).
The speech was not the basis for the
prosecution, but instead it was used to establish the existence of, and Colon's
participation in, the alleged RICO enterprise. See Wisconsin v.
Mitchell, 508 U.S. 476 (1993) (`The 1st Amendment . . . does not
prohibit the evidentiary use of speech to establish the elements of a crime or
to prove motive or intent’). . . .
U.S. v. Pierce, supra.
As the court explained, Colon also argued that the rap
lyrics were
merely `fictional artistic expressions’
and `perverse puffery’ that should not have been admitted against him. Indeed,
in State v. Skinner, 218 N.J. 496, 521 (2014), the New Jersey Supreme Court recently overturned a conviction where the state's case at trial
relied heavily on violent rap lyrics, as the court observed that `[o]ne would
not presume that Bob Marley, who wrote the well-known song “I Shot the
Sheriff,” actually shot a sheriff.’
Rap lyrics and tattoos are properly
admitted, however, where they are relevant and their probative value is not
substantially outweighed by the danger of unfair prejudice. See U.S.
v. Moore, 639 F.3d 443 (U.S. Court of Appeals for the 8th Circuit 2011) (affirming admission of profane and violent rap recordings
over Federal Rule of Evidence 403 challenge where lyrics were probative of
defendant's participation in narcotics conspiracy); U.S. v. Belfast, 611
F.3d 783 (U.S. Court of Appeals for the 11th Circuit 2010) (holding rap
lyrics were relevant and their probative value not substantially outweighed by
any unfair prejudice where lyrics were used to show that defendant was
associated with his father Charles Taylor's Anti–Terrorism Unit, which tortured
Sierra Leoneans in Liberia).
U.S. v. Pierce, supra.
The Court of Appeals went on to hold that, in this case, the
government proffered the rap video to
show Colon's animosity toward the Young Gunnaz, as well as his association with
CAC. The government similarly offered the tattoo evidence to help establish his
motive for violence against the Young Gunnaz, and to show his loyalty to
Harrison and Meregildo -- indeed other members of CAC had similar tattoos.
Hence, the rap video and tattoos were
relevant, their probative value was not outweighed by the danger of unfair
prejudice, and Colon's 1st Amendment rights were not implicated when the
district court admitted the evidence from his social media account.
U.S. v. Pierce, supra.
For these and other reasons, the Court of Appeals affirmed
the convictions of Colon and the other defendants, except one, whose conviction
it sent back to the District Court Judge to correct that person’s
sentences. U.S. v. Pierce, supra.
You can, if you are interested, read more about the issues
discussed above and about the prosecution in the news story you can find here.
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