Social Media Videos – UNITED STATES OF AMERICA v. Ar AB AND OBH
“The probative value of the evidence in question may be substantial: the social media videos and posts arguably corroborate the existence of a conspiracy to distribute controlled substances; identify and expose the relationships amongst various members of the DTO; and demonstrate one of the ways that the organization executed control. For example, West’s references to “OBH,” “OBH Goonie Gang,” “OBH mob,” and/or “OBH Mafia” in Video 2, Video 3, and Video 5 are probative because the Government alleges that “OBH” is the name the DTO operated under. “
“The question presented by the Government’s motion—whether the FRE permits admission of rap music and lyrics in a criminal prosecution—has been confronted by one court in this District. In United States v. Bey, Judge Beetlestone concluded that where evidence has no relation of any kind to the charged offense and has high potential to create unfair prejudice, FRE 403 requires exclusion. No. 16-290, 2017 WL 1547006, at *7 (E.D. Pa. Apr. 28, 2017). In Bey, the Government sought to admit rap videos performed by the defendant in his prosecution for violating a felon-in-possession statute. Id. at *1. Although the court determined that the rap evidence was not admissible under FRE 404(b), it nonetheless analyzed the applicability of FRE 403. Id. at *6. After finding that the probative value of the evidence was minimal, since the music videos had “no bearing whatsoever as to [the crime charged; that is] whether Bey possessed a firearm,” and that the “potentially inflammatory” nature of the evidence was high, given the offensive lyrics contained in the videos, Bey held that the proper balance under FRE 403 required exclusion of the Rap videos. Bey is inapposite. Unlike in Bey, where the admissibility of rap lyrics was considered in the context of a distinct crime (felon in possessi on of a firearm) and thus had minimal relevance, here the social media videos relate directly to the charged offenses insofar as they tend to identify the members of the DTO, demonstrate activities of various Defendants, and document one way in which the DTO maintained control. See, e.g., United States v. Mills, 367 F. Supp. 3d 664, 671 n.9 (E.D. Mich. 2019) (distinguishing Bey because there, the defendant was charged “with a discrete 14 crime”).”
“Moreover, the “potentially inflammatory” nature of the evidence in Bey was significant given the disconnect between the single crime charged and the offensiveness of the lyrics, Bey, 2017 WL 1547006, at *7. By contrast, while the social media evidence here contains profanity and references violence that some viewers may find offensive or shocking, the inflammatory nature of the evidence is no more inflammatory than the charged crimes—conspiracy to distribute narcotics, distribution of controlled substances, weapons possession, and other criminal activity. Therefore, Bey does not undermine the Court’s conclusion that the social media evidence will be admitted if a proper foundation is laid at trial. Here, where Defendants disseminated the social media evidence on publicly viewable sites—indeed, the purpose of social networking sites such as Instagram and YouTube is to allow others to view posted content—it cannot be said that admitting evidence of those posts in subsequent prosecution creates “unfair prejudice” within the meaning of FRE 403.”
Social Media Videos
“The Government seeks to admit four videos and alleges that:3
• Ar-Ab—Life Like Freestyle (“Video 1”) (identified as Government Exhibit 3 at the October 15, 2019 hearing): West states that his life changed when “Melliano”—alleged to be a nickname for defendant Hickson—began supplying him with cocaine.
• Ar-Ab Shooter Skinny Me Threatens Ex-OBH Member Trendsettaz Shady (“Video 2”) (identified as Government Exhibit 5 at the October 15, 2019 hearing): Defendant West communicates threats of violence and Blanding can be seen in the background.
• Lik Moss x Ar-Ab—Blood Brothers (Trendsettaz Shady Diss) (“Video 3”) (identified as Government Exhibit 2 at the October 15, 2019 hearing): Defendant West raps about ordering the assassination of Robert Johnson and sending Defendant Stewart to commit the murder. The Government avers that the reference in the lyrics to the murder of Robert Johnson, allegedly committed by Stewart at the behest of West, is as follows: “I’ll have da whole city scared stand near homie I call Tez [Dontez Stewart’s nickname] and tell him bring dat nigga head to me.” (ECF 407, Government Resp. to Defs.’ Mot. in Lim. to Exclude All Evid. of Murder of Robert Johnson at 4.) The Government contends that during the investigation, a cell phone was seized from Defendant West that contained a post with the lyrics of this video; the note was dated four days after the murder of Johnson. (Second Superseding Indictment at 6.)”
“Ar-Ab—Rivals (Cassidy Diss) @AssaultRifleAb @NoBrakesBras (“Video 4”) (identified as Government Exhibit 4 at the October 15, 2019 hearing): Defendant West raps about the seizure of ten kilograms of cocaine, the arrest of Defendant Hoover, and his hope that Hoover will not cooperate with law enforcement.”
“Social Media Posts In addition to the four videos, the Government seeks to admit approximately one hundred posts to social media sites by various Defendants depicting drug trafficking activity and/or containing references to the conspiracy. The spreadsheet provided by the Government catalogues the “profile” from whom each post was recovered; the individuals in the post; the date and location of the post (if known); and a brief description of the post’s alleged relevancy.”