The Tattoos, the 1st Amendment and Racketeering

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.