Video of defendant rapping, (which included "insults and boasted about" defendant's "lifestyles and rapping skill ..., and showed [defendant] Moore with his friends, taking turns rapping", illustrating through defendant's lyrics that the defendant was familiar with "drugs, guns, women, and sexuality," and that ... the "police all know me and I have narcotics.... I brought the rack even though cocaine prices are up”) was admissible in his trial for conspiracy to distribute cocaine; because the defendant contended that he had "never bought or sold crack cocaine or cocaine" and he denied involvement in the charged drug conspiracy, the video was relevant to showing the defendant knew cocaine prices, used drug code words, and sold drugs; under FRE 404(b), the "evidence was admissible to show his knowledge of drug distribution and his motive for engaging in it," in United States v. Moore, __ F.3d __ (8th Cir. April 6, 2011) (No. 08–4292)
Other act evidence admitted under FRE 404(b) does not necessarily have to be criminal or wrongful in order to be admitted. But how broadly does this generalization go? The Eighth Circuit recently noted that even art or music can satisfy the qualifications for admission as other act evidence under FRE 404(b). The circuit broke no new ground in its analysis of the issue, but it none-the-less provides an instructive example that "other acts," even if the acts include legal activities or art performed by the defendant, may be as probative in a case as would evidence of prior crimes or of other wrongful actions.
In the case, defendant Moore was charged with conspiracy to distribute cocaine base (crack) and cocaine itself. During his trial on this charge, the prosecution introduced:
video recordings of Moore rapping.In the first set of recordings, Moore, using his pseudonym Spade, engaged in battle rap with another artist. Taking turns, they traded insults and boasted about their lifestyles and rapping skills. The second set of recordings took place outside of what appears to be an apartment complex, and showed Moore with his friends, taking turns rapping. Moore's lyrics were about drugs, guns, women, and sexuality. At one point he rapped, “The police all know me and I have narcotics.... I brought the rack [slang for $1000] even though cocaine prices are up.”Moore, __ F.3d at __ (footnotes omitted).
The defendant did address his rap videos during his testimony at trial. The defendant contended, when questioned about the videos, that "rapping is his art and that his provocative lyrics were not literally true but were meant to draw a response from the crowd." Moore, __ F.3d at _. On appeal, the defendant disputed that the videos were admissible and the prosecution argied that the defendant's "lyrics constituted evidence of the charged conspiracy." The circuit rejected the defense contention, explaining:
"Even if the recordings constituted evidence of prior bad acts, they were nonetheless admissible under Rule 404(b). Moore maintained that he was not involved in a drug conspiracy, and he testified that he never bought or sold crack cocaine or cocaine. The recordings were relevant to prove that he knew cocaine prices, used drug code words, and sold drugs to supplement his income. Accordingly, the evidence was admissible to show his knowledge of drug distribution and his motive for engaging in it."Moore, __ F.3d at __ .
Similarly, the circuit rejected defendant's challenge that the rap vidoes were unfairly prejudicial under FRE 403. According to the circuit, "Some of Moore's lyrics tended to show that he knew cocaine prices, used drug code words, and sold drugs to supplement his income. Countering the probative value of that evidence, however, was the danger of unfair prejudice flowing from the lyrics used by Moore and the other rappers, which were replete with vulgar, inflammatory, prejudicial language, most of which was irrelevant to whether Moore was involved in a drug distribution conspiracy." Moore, __ F.3d at __ (cf. United States v. Gamory, 635 F.3d 480, 488 (11th Cir. 2011) (“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.”))
But even if admission violated FRE 403 limitations, the circuit suggested it was harmless error: "Assuming for purposes of discussion that the recordings should not have been admitted, we conclude that, in light of the overwhelming evidence against him, Moore has failed to persuade us that the recordings affected the outcome of the district court proceedings. We thus conclude that their admission did not affect Moore's substantial rights."
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