Wednesday, December 16, 2020
Tenth Circuit Finds Defendant's Use of Memes About Pimping on the Website "Tagged" Were Admissible Intrinsic Evidence in Prosecution for Facilitating Prostitution
Federal Rule of Evidence 404(b)(1) & (2) state the following:
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
“Because Rule 404(b) only limits evidence of ‘other’ crimes-those extrinsic to the charged crime-evidence of acts or events that are part of the crime itself, or evidence essential to the context of the crime, does not fall under the other crimes limitations of Rule 404(b).”.... “Evidence is considered ‘intrinsic’ when it is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury, and ‘extrinsic’ when it is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.”
In United States v. Alfred, 2020 WL 7329980 (10th Cir. 2020), the prosecution claimed that "memes contain[ing] laudatory references to pimping and pimping culture and also...graphic depictions suggesting dire consequences of engaging in prostitution without a pimp" were admissible as intrinsic evidence against a defendant charged with (1) coercion and enticement; and (2) facilitating prostitution. So, how did the court rule?In Alfred,
The charges...stem[med] from Mr. Alfred's activities on Tagged, a social media website....
Mr. Alfred went by the alias “King Maybach” on Tagged, and included a picture of a crown before “Maybach” on his profile page. Mr. Alfred's profile stated he was a straight, single, twenty-nine-year-old, Black, Christian male and included a picture of him....During the investigation period, Mr. Alfred sent sixty-five Tagged users messages asking “What's good wit cha ma[?]”...One of these accounts was a false profile with the screenname “G-Baby,” that was created by law enforcement to target sex traffickers. Using photographs provided by a confidential source, G-Baby purported to be a nineteen-year-old woman in Colorado. The G-Baby account responded to Mr. Alfred's “What's good wit cha ma[?]” opening and the two chatted. Special Agent Craig Tangeman, the government agent controlling the account, looked over the King Maybach profile, including the memes at issue, shortly after initiating contact. G-Baby told King Maybach her name was “Nikki” and Agent Tangeman confirmed King Maybach was Mr. Alfred. “Nikki” claimed to be in a bad living situation with a former boyfriend and said she wanted to leave Denver. Mr. Alfred told “Nikki” he could help her become rich, improve her life, and achieve her goals.Mr. Alfred encouraged “Nikki” to find a “trick”—a sex buyer—to obtain the funds to travel to Houston, Texas, where he lived. Agent Tangeman portrayed “Nikki” as concerned about engaging in prostitution and asked Mr. Alfred to explain its terminology. Mr. Alfred continued to push “Nikki” to engage in sex acts for money, explaining terms, pricing structure, and other elements of prostitution culture, and he gave her explicit guidance on the who, what, where, and how of meeting sex buyers.
A confidential source posing as “Nikki” ultimately called Mr. Alfred and told him she had engaged in a sex act for money and was able to purchase a bus ticket to Houston. Mr. Alfred agreed to meet “Nikki” at the bus station. Law enforcement was waiting at the bus station and arrested Mr. Alfred, who had a loaded gun with him as well as the cell phone he used to contact “Nikki.”
The district court deemed the memes admissible as extrinsic evidence, and the Tenth Circuit affirmed on appeal, holding that
Mr. Alfred argues the district court misunderstood social media because posts are “meant to be taken as ephemera, as fleeting thoughts,” but the district court “attempted to view all Tagged usage as a ‘storefront’ or as a business webpage.”...According to Mr. Alfred, “[t]he fatal flaw in the government's argument is that it presupposes that Mr. Alfred had a brand to begin with....[T]here is no evidence that Mr. Alfred was using social media in the same manner” as a corporation or a professional athlete uses social media....
This argument ignores the integral nature of social media to Mr. Alfred's attempts to solicit prostitution....Here, Tagged was the means by which the criminal conduct occurred and a jury could conclude Mr. Alfred's easily accessible memes and pictures were an integral part of the solicitation attempt and advancement of his business. As the district court held, that the memes were readily available “combined with other evidence where he is reaching out to various other people in what the government characterizes ... as an attempt to solicit people ... make[s the memes] intrinsic.”...
The district court did not abuse its discretion in finding the evidence admissible for the purposes of showing Mr. Alfred's “brand” on Tagged. Record evidence demonstrates Mr. Alfred was using Tagged to solicit at least one Tagged user (“Nikki”) to engage in prostitution and that his profile page and photos were available to those he was trying to recruit.