Defendant Rap Music Video Was Unfairly Prejudicial, In Light Of Its Lyrics

In drug conspiracy and money laundering case, admission at trial of a music video produced by defendant's company (with its "substantial danger of unfair prejudice" because it depicted "violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle," but in which defendant did not appear) as rebuttal to defendant's contention that he had a legitimate source of income was plain error, but harmless in United States v. Gamory, __ F.3d __ (11th Cir. March 11, 2011) (No. 09-13929)

When does the prosecution overreach in presenting other act evidence related to the defendant that is just too unfairly prejudicial in light of what it might prove about the defendant? This is a central question in applying FRE 403. Normally admission of other act evidence does not create such unfair prejudice as to "substantially outweigh[]" its probative value. Last week, the Eleventh Circuit considered a case where the other act evidence was excludable not only because of its potential for unfair prejudice under FRE 403, but also because it was barely relevant under FRE 401 and was hearsay subject to no exception under FRE 801(c). The case presents an interesting example of when other act evidence is just too attenuated under the FER.

In the case, defendant Gamory was charged as part of a drug cocaine and marijuana distribution conspiracy and with laundering the proceeds of that activity. Commonly referred to as "JB" he collaborated with friends "Punch" and "Smooth" in a music recording business known as "Hush Money Entertainment" or "HME." The defendant's conspiracy came to the attention of the DEA when a Confidential Informant acted as a translator between the defendant and his associates and with drug suppliers.

In its effort to prove the money laundering charges, the prosecution used testimony by the CI and by two cooperating witnesses and tax records for the defendant and associates, contending this evidence showed that the defendant "did not have a legitimate source of income." In fact, the prosecution contended that the defendant's businesses, such as HME were only "a cover for the drug ring" he was charged with operating. In order to rebut the defense suggestion that the defendant was simply a "legitimate businessman in the entertainment and restaurant businesses," the prosecution "played a rap music video produced by HME in August 2006 that was discovered on the “YouTube” website during the trial. Gamory objected based on Fed. R. Evid. 403, arguing that the content of the video was unfairly prejudicial and of slight probative value since Gamory did not appear in the video and had not written the lyrics. The video shows the rap artist Tone Flowa singing a rap song that contained explicit lyrics dealing with drugs, sex, profanity, degradation of women, firearms, and threats of violence against the police and public." Gamory, __ F.3d at __ (footnote omitted).

The prosecution alleged that the video recording was relevant because its "lyrics reference ... 'drug money [a]s Hush Money, drug money is Hush Money which is said repeatedly throughout that video is very relevant to [the charges] that Mr. Gamory is a drug dealer.' The government also argued that the lryics referencing 'hush money,' 'drug money,' and 'an off-white crib with a Rover parked out front,' as well as jeweled cufflinks worn by the artist in the video, were relevant because Gamory's recording business was named 'Hush Money Entertainment,' was located in an off-white house, and Gamory drove a Range Rover. Finally, the government argued that Gamory owned a pair of jeweled “JB” cufflinks which matched a necklace featuring the jeweled letters “JB” on it that were displayed during the video." Gamory, __ F.3d at __ n.8. The trial judge agreed with the prosecution, admitting the testimony of an drug agent that "the purpose of showing the video was to demonstrate a correlation between JB, Hush Money, and drug money, but she acknowledged that Gamory was not in the video."

At trial, the defendant objected to the rap video evidence as unfairly prejudicial under FRE 403, which was reviewed for abuse of discretion. Objections the defendant raised on appeal the contentions that the rap video was also not relevant under FRE 401, was hearsay under FRE 801(c) and that its admission violated the defendant's Sixth Amendment Confrontation Rights, all of which the circuit reviewed for plain error. The circuit found error in the admission of the rap video at the trial. The various bases for the circuit's finding of error included:

  • FRE 403 - Unfair Prejudice: "Based upon our independent review of the rap video and the totality of the record, we conclude that it was error under Fed. R. Evid. 403 to play this rap video to the jury. We recognize that the video could be construed to discuss Gamory inasmuch as the lyrics referred to JB, a white crib, a Range Rover, drugs and Hush Money and because the artist in the video, Tone Flowa, wore a necklace with a 'JB' insignia that was similar to cuff links seized during the search of Gamory's residence. But the substance of the rap video was heavily prejudicial. The lyrics presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle. At the same time, the video was not clearly probative of Gamory's guilt. We cannot ignore the simple fact that Gamory was not in the video. Neither was there any evidence that Gamory authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by Gamory." Gamory, __ F.3d at __.
  • FRE 403 - Cumulative Evidence/Balance of Probative Value And Unfair Prejudice: The circuit also noted, in particularly for its later determination that the error was harmless, that the evidence was at best cumulative: "We are also mindful of the fact that the government introduced the rap video at the end of its case after it had already presented significant evidence that Gamory was JB and he owned Hush Money Entertainment. These facts were not seriously contested at the time the video was introduced and such evidence was therefore cumulative. In short, the probative value of the rap video was minimal at best, and more importantly was substantially outweighed by the video's unfair prejudice." Gamory, __ F.3d at __.
  • FRE 801(c) - Hearsay: On the hearsay objection the defendant raised on appeal, the circuit agreed: "[T]here is little doubt that the rap video was inadmissible hearsay. The rap video contained a 'statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Fed. R. Evid. 801(c). Subject to certain exceptions not applicable to Gamory's case, the hearsay statements were inadmissible. See Fed. R. Evid. 802-804. In this Court, the government disavowed that the purpose of the video was to prove the truth of the matter asserted, but the District Court record contradicts that assertion." The circuit disagreed in part because of a statement by the prosecutor at trial as to the purpose of the rap video evidence - that the video's "reference of drug money is Hush Money, drug money is Hush Money which is said repeatedly throughout that video is very relevant to the issues for which are being tried here today, that being that the Government contends that Mr. Gamory is a drug dealer." Additionally, the trial judge's basis for admission was that the court also considered the video relevant based upon the truth of the matters asserted in the lyrics, as the court said upon viewing the video: "I think there's sufficient relevance in the video associating the Hush Money Entertainment operation with drug money and with the Defendant to outweigh any potential prejudice that the video might otherwise cause." Gamory, __ F.3d at __ .
  • Confrontation Clause: The circuit rejected the defense contention that admission of the video violated his right to confrontation under the Sixth Amendment. According to the circuit, in reviewing this contention for plain error, the evidence was not testimonial. This was because "there is no Confrontation Clause error under any standard. Apart from the rules of evidence, out-of-court statements by witnesses that are 'testimonial' are barred, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. See Crawford v. Washington, 541 U.S. 36, 51-52, 68 (2004). We conclude that the rap video would not qualify under Crawford's definition of “testimonial.” Gamory, __ F.3d at __ (citing Davis v. Washington , 547 U.S. 813 (2006) (explicating term “testimonial”); Michigan v. Bryant ,__ U.S. __ (2011)).

Despite the plainness of the error of admitting the rap video, the circuit concluded it was harmless. It noted that the video was repetitive of "first-hand testimony about Gamory's drug trafficking from several of his co-conspirators, which was corroborated by surveillance and seizures of substantial amounts of cash and drug ledgers." As such, in light of "this overwhelming evidence and our independent review of the entire record, we are able to conclude with “fair assurance ... that the judgment was not substantially swayed by the error.” Gamory, __ F.3d at __ (citing United States v. Phaknikone , 605 F.3d 1099, 1109-10 (11th Cir. 2010) (finding erroneous admission of evidence from defendant's internet website, in which he allegedly portrayed himself as a gangster, was harmless in light of the overwhelming evidence of his guilt); United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995) (finding District Court's error in admitting evidence was harmless in light of overwhelming evidence of defendant's participation in drug conspiracy).

Federal Rules of Evidence
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