Free Speech

Defendant's Rap Video Describing Pimping Admissible in Prosecution for Sex Trafficking a Minor


From last week's Fifth Circuit opinion in U.S. v. Sims, written by Judge W. Eugene Davis and joined by Judges Catharina Haynes and Andrew Oldham:

A jury found Defendant, Jaimian Sims, guilty of sex trafficking a minor and conspiracy to sex traffic a minor. The district court imposed a life sentence. Sims appeals his conviction arguing [among other things] … that certain rap videos were improperly admitted into evidence and shown to the jury….

Sims was a Houston-based rap artist (known as "Sauce Lean") and pimp who associated with a group who called themselves "The Sauce Factory" (TSF). TSF members were allowed to use a large house called "the Mansion" which was owned by one of the top TSF members known as "Sauce Walka." At some point between 2016 and 2017, Sims linked up with co-defendant Gary Shawn Haynes, Jr., who was a college football player. Haynes knew Sims was a pimp and wanted an opportunity to join that lifestyle.

To get Haynes started, Sims instructed his girlfriend and co-defendant, Tabbetha Mangis, to find Haynes a "white girl" to work as a prostitute for Haynes. Mangis reached out to the 17-year-old minor victim, who throughout proceedings has been referred to as Jane Doe. Mangis knew Jane Doe as a friend of Mangis's younger sister, and she knew that Jane Doe was 17 years old. Several text messages were exchanged between Jane Doe, Mangis, and Haynes, which resulted in Jane Doe agreeing to work as a prostitute for Haynes. Haynes also knew that Jane Doe was underage. Haynes picked up Jane Doe and brought her back to the Mansion where Jane Doe was taught the rules of prostituting.

Shortly after her arrival at the Mansion, Haynes brought Jane Doe to the Express Inn motel where he provided Jane Doe fraudulent identification to obtain a room. Meanwhile, Sims had previously checked in to the Express Inn to oversee his own prostitutes. After Jane Doe's initial check-in, she was relocated to a room in the Express Inn occupied by one of Sims's prostitutes, referred to as Janet Doe. Janet Doe was instructed by Sims to teach Jane Doe how to make money— "help her," make her "comfortable," and "help her post ads."

Jane Doe then engaged in commercial sex for three days in which all money she earned from these activities was paid to Haynes. After the three days, on November 23, 2017, Jane Doe called the police and asked them to arrest her so that she could escape. The police arrived and recovered Jane Doe, and Sims and several prostitutes at the hotel were arrested….

Sims argues that rap videos admitted at trial were unfairly prejudicial and should have been excluded under Federal Rule of Evidence 403. He contends that the lyrics to the music in the videos, which referred to women as "bitches" and "whores" and glorified the pimp lifestyle, including designer clothes, violence, weapons, money, drugs, jewelry, and "selling white bitches," were fictional and did not depict his real life. At trial, the Government played three rap videos by TSF—"7:30," "ALot of That," and "Remix"—and questioned witnesses about the identities of the people in the videos and the phrases and imagery used in them.

Under Rule 403, relevant evidence may be excluded if "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." A district court's ruling as to Rule 403 is reviewed "with an especially high level of deference to the district court, with reversal called for only rarely and only when there has been a clear abuse of discretion." Courts apply Rule 403 sparingly, and the rule is "not designed to even out the weight of the evidence." "Rule 403's major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect." "Any error in admitting such evidence is subject to harmless error review, and reversal is not required unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction."

The admissibility of rap videos is an issue of first impression in our circuit. However, other circuits have analyzed the admissibility of rap videos under Rule 403. The general conclusion from courts that have considered this type of evidence is that explicit rap videos are probative and outweigh substantial prejudice when the defendant performs the song, describes events closely related to the crime charged, and the evidence is not cumulative.

In this case, Sims performs in all three videos. Regarding the song, "7:30," Mangis testified that 7:30 was made shortly after Sims was arrested for sex trafficking a minor. In 7:30, one verse contains the lyrics "While you was trying to be a top draft pick," and then after a few lines says, "N[***a] trying to put the feds on me, but they won't put me with the dead homies." Mangis testified that these lyrics were about Haynes, the college football star trying to go to the NFL, who got Sims wrapped up in the present federal case. Given the timing of this song, the lyrics that describe the facts of this case, and the fact that Sims was in the video, we cannot say that the district court abused its discretion in admitting this video. This video connects Sims to Haynes in this particular case, and it depicts the use of firearms, which was highly relevant for the government's case on Count 3, the force charge.

In the video for "The Remix," Sims and Sauce Walka flash guns and money while rapping about violence and pimping, generally. Mangis testified that the song was about Sims's lifestyle. Similarly, "ALot of That" talks about "selling white bitches" and how rich and famous the performers are. The video depicts drug use and weapons. Although these videos speak only generally to the pimping lifestyle and are cumulative of testimony in that respect, the violence and weapons depicted in the videos are relevant to the force charge—that Sims sex trafficked by force, fraud, or coercion. We are not persuaded the district court abused its discretion in admitting these two videos. However, even if the district court erred in admitting these two videos, we are satisfied that the videos were not harmful to the defense, and any error was harmless.

Here's my general thinking about such cases:

[1.] There's no First Amendment problem with such evidence: Generally speaking, a defendant's speech—even if constitutionally protected—may be introduced as evidence of his legally significant intentions or knowledge, or as evidence that he was indeed the guilty party. Thus, the statement "I hate Joe Schmoe" is constitutionally protected, but if I'm on trial for killing Joe Schmoe and the prosecution wants to show that I'm the one who did it, the statement would be admissible as evidence of motives.

The same is true for political statements. Thus, for instance, statements of Nazi sympathy were constitutionally protected even during World War II. But if a defendant is on trial for treason for harboring his son (a Nazi saboteur), and the legal question is whether the defendant helped the son with the specific purpose of helping the Nazis (as opposed to just a father's desire to help his son), the defendant's speech is admissible evidence of that purpose.

At times courts do refuse to allow such speech as evidence, especially when the speech is seen as having relatively little probative value. The reason isn't the First Amendment as such, but rather the rules of evidence, such as the rule that evidence should be excluded if its probative value is substantially outweighed by its tendency to create unfair prejudice against the defendant, or that "prior bad acts" evidence should usually be excluded if the jury is likely to use the evidence to infer a propensity for the crime (as opposed to showing a motive, intent, or other matters)—the very issue in this case.

[2.] So how should that evidentiary rule (the federal Rule 403) be applied here? It does seem to me that the first video has considerable probative value; and while it may be used to paint the defendant in a bad light, I don't think that's unfair prejudice. I'm also inclined to say that the other two videos would also be admissible, especially since Rule 403 asks whether the probative value is substantially outweighed by the tendency to create unfair prejudice.

The strong presumption is in favor of admissibility of relevant evidence (unless some other rule of exclusion, such as the hearsay rule or an evidentiary privilege applies). To be sure, the jury is free to be skeptical of such evidence—but that's generally for the jury to decide.

On the other hand, I'm tentatively skeptical of the claim that "even if the district court erred in admitting these two videos, we are satisfied that the videos were not harmful to the defense, and any error was harmless." I would think that a video in which the defendant "talks about 'selling white bitches'" would indeed be harmful to the defense; again, perhaps that's legitimate, because it's also probative enough. But "if the district court erred in admitting these two videos," I'd think that this erroneous (by hypothesis) decision might well have been reversible error. (On the other hand, I haven't watched videos or read the rest of the record, so perhaps in context the videos are less damning than they appear.)

[3.] Of course, many people think about all this, and think: "I shot a man in Reno." Well, they didn't, and I didn't, and neither did Johnny Cash, but the question arises: Given that Cash's song is obviously just a song, surely it shouldn't be used as evidence against him if he were ever prosecuted, right? Likewise for "I shot the sheriff."

But I think that's true in part because we have no outside reason to think that Cash shot a man in Reno. If the song gave some extra accurate details about a particular shooting, and Cash was potentially implicated in the shooting, and his defense was that he didn't do it—or that he did do it, but he "swear[s] it was in self-defense," while the prosecution claims it was "just to watch [the victim] die"—then the song might well be admissible. It wouldn't be dispositive, but it would be evidence that the jury could consider.

Thanks to the Media Law Resource Center's MediaLawDaily for the pointer.

NEXT: The New Yale Book of Quotations Is Published (Post 1 of 3)

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  1. I have it on good authority, the super accurate and impartial website, that there is no sex trafficking. Period.

    1. Jane Doe was definitely a sex trafficking victim. Janet Doe probably was not. The problem with a lot of the sex trafficking moral panic is that they don’t distinguish between adults engaged in voluntary sex work, and victims of violence and intimidation.

      I think licensing sex work, and requiring 1 hour of STD testing and training a month, and 1 hour of counseling to make sure they are voluntarily engaged in prostitution would be a good compromise between making it legal, without enough incentive to engage in illegal sex work, and keeping it illegal and making abusive pimps part of the industry.

      And definitely make sure the regulations are furry friendly, a friend asked me to add that.

      1. 1) Sex trafficking is definitely a moral panic, and the media always participates in moral panics, but I think it’s more of a law enforcement/activist driven one.

        2) Sex trafficking is virtually always a dysphemism for prostitution.

        3) You say that Jane Doe was definitely a sex trafficking victim. But how? Based on the narrative above, she wasn’t kidnapped; she wasn’t coerced. She chose to do it. I mean, yes, since she’s under 18 and it involves sex we pretend she had no agency, but that’s not what it says above. (To be sure, I am not defending the involvement of minors in prostitution. But that doesn’t change the fact that it was prostitution.)

        1. Volokh has low emotional intelligence so he can be forgiven for missing this point.

          Rap videos contain bragging. K? They are as fictitious as any Star Wars movie. Introducing them as evidence has the same validity as introducing a Star Wars vid. But then there are so many “constructed,” “constructive” legal concepts, objects, and policies, there are so many supernatural doctrines in the lawyer dumbass profession, rap videos are probably more real than most concepts of the lawyer dumbass.

          1. Volokh is an idiot savant bookworm, and clueless. Everyone at the diner understands what I just said.

    2. Saucy ripped off the hooer, took her money, gave her none of it, so she called the cops. The legal system should stay out of hooer disputes.

      1. Saucy is being lynched by the vile feminist lawyer profession. He is the Emmett Till of today.

  2. I suspected someone would bring Johnny Cash into it.

    It’s true that in “Folsom Prison Blues,” he sings “But I shot a man in Reno just to watch him die.”

    But the line after that is

    “When I hear that whistle blowing, I hang my head and cry”

    Because he’s serving what seems to be a lifetime prison term (“Well I know I had it coming/I know I can’t be free”) and he can’t stand the sound of the train going by, because it remind him of the freedom he lost, “And that’s what tortures me.”

    Yes, that song really makes the listener want to go out and commit crimes! /sarc

    But the fact is, Cash is white, and gangsta rappers are seen as black (though there are plenty of white “wanksta rappers”), so it’s politically necessary to make a moral equivalence, otherwise you’re a racist.

    Here is some blues music about prisons and chain gangs – notice how it entices the youth to a life of crime. /sarc

    1. Why is a man convicted of a murder in Nevada in prison in California?

      1. I did a search and found some legal analysis of that very point:

        1. Does he say he is in Folsom for the Reno murder? Or is that just the crime he feels the worst about, and possibly he wasn’t even charged for the Reno murder?

          Or he could have shot a highway patrolman in Placerville fleeing from the Reno murder, California isn’t likely to turn him over to Nevada, for that, and he isn’t likely to hang his head and cry over shooting a cop.

      2. “Why is he incarcerated in Calif. if he shot a man in Nev.?”

        1. He actually shot the man in Reno Junction, Calif., but “junction” would have spoiled the rhythm.

        2. It’s a SONG for cripe’s sake! A damn fine song, too.

        1. And if you like FPB, look on Soundcloud or elsewhere for Pinball Wizard sung to FPB music and have your mind blown.

    2. If you want to find a white musician upon whom to vent one’s moral-equivalence arguments, here’s a good one:

      1. And here’s something gross and “eww”-inducing from another white musician:

  3. “Several text messages were exchanged between Jane Doe, Mangis, and Haynes, which resulted in Jane Doe agreeing to work as a prostitute for Haynes”

    My head exploded when I read that line.

    Does the opinion reveal the contents of the text messages that caused a 17 year old girl to agree to be someone’s prostitute?

    1. Jane Doe then engaged in commercial sex for three days in which all money she earned from these activities was paid to Haynes. After the three days, on November 23, 2017, Jane Doe called the police and asked them to arrest her so that she could escape.

      So, was the situation that they told her about the money she could make as a prostitute, and she called the cops because she wasn’t making that money, her pimp was?

  4. On the other hand, I’m tentatively skeptical of the claim that “even if the district court erred in admitting these two videos, we are satisfied that the videos were not harmful to the defense, and any error was harmless.” I would think that a video in which the defendant “talks about ‘selling white bitches'” would indeed be harmful to the defense; again, perhaps that’s legitimate, because it’s also probative enough.

    I fail to understand how admitting any of these videos could be
    A: Wrong, because they didn’t provide any value to truth seeking
    but also
    B: Harmful to the defense

    Now, if we were talking about the prosecution gratuitously mentioning a defendant’s previous convictions, or if the video was about dog abuse, or some other socially looked down on behavior that wasn’t relevant to the current trial, then I could see that case being made.

    But all three videos are about the current crimes being tried. “You have the right to remain silent. Anything you say can and will be used against you in a court of law”

    If it’s likely to make the jury think the defendant is guilty, then it clearly has probative value, and should not be excluded

    If it doesn’t have probative value, it’s because it’s not doing anything to make the jury think he’s guilty

    1. Except that the three videos are not about the “current crimes being tried”?
      The one, potentially, relevant video was the one made right after his arrest, in which he describes his co-pimp and talks about killing him if he talks to the “feds”. Unfortunately, while that might make great evidence for a charge about threatening the witness or whatever, it doesn’t seem to have much to do with prostitution. The judges allowed it because it described criminal violence, and he as also accused (threats of) of criminal violence in the prostitution case… which is quite a stretch.

      The other two videos seem to pre-date the crimes at trial, and are about general pimping and thug life. That’s no more a confession of this specific crime than Ice Ice baby was Vanilla Ice’s confession of killing people in gang street shootouts.

      1. “I engage in pimping out white girls”

        “You are accused of pimping out a white girl, so we’re going to show you bragging about doing that”

        “That’s no fair! That’s not relevant!”

        Yes, it is.

        A video about how you torture dogs, would not be relevant to a pimping case.

        but bragging about pimping?

        Yes, that’s directly on point to the case at hand

        1. Federal Rule of Evidence 404(a)(1):

          Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

        2. We know, with 100% certainty, that almost all descriptions of criminal behavior in rap songs are false – the crime statistics simply do not allow for anywhere near the number of described activities to have taken place, even if you assume that ALL crimes other people were convicted of were actually performed by rappers.

          But they are claiming that common phrases used in a widespread and popular music genre were, when used by this specific person only, indicative of the singer’s likelihood to commit this specific crime in the future.

          It seems to me that it is no more relevant than a video advocating for the legalization of sex workers would be.

  5. While I kinda enjoy a “gangsta” rapper getting hoisted with his own petard, even songs based on personal experience are often changed to fit the music or rhyme or cadence of the song.

    So, I am skeptical of these raps being admissions.

    1. You mean the Beastie Boys’ “Paul Revere” wasn’t literally true?

    2. If you brag about doing something, and then are credibly accused of doing it, why in the world would we want to prevent the government from entering into the record the fact that you bragged about doing it?

      If the brag was a lie, you can go on the stand and testify to that fact. For that matter, your attorney can try to make points to the jury about why they shouldn’t believe the video.

      But in a world where “anything you say can and will be used against you in a court of law”, why in the world should we have a “unless you say it in a song” exclusionary rule?

      Note: not a “defense”, because you’re free to make that defense. but an “exclusionary rule”

      1. I was going to respond to the question that multiple people have already answered by citing FRE 403, but that’s in the post itself.

        Even if it were reasonable to describe singing a song lyric as “bragging about” doing the things mentioned in the lyric, he did not brag about trafficking Jane Doe. You can’t bring in prior bad acts to help prove that someone committed a particular crime (yes, yes, I know: MIMIC), so it’s even more of a stretch to bring in talking about fictional prior bad acts to prove that he committed that crime.

  6. Regarding the song, “7:30,” Mangis testified that 7:30 was made shortly after Sims was arrested for sex trafficking a minor.

    I’m trying to envision his defense attorney’s response when he discovered the video his client made about the case for which he’s goign to have to defend said client in court.

  7. This case was also blurbed in the recent Short Circuit. I found a couple other points of interest, one being that Haynes was apparently attracted to the “lifestyle” of being a pimp. It seems that a desire to celebrate the lifestyle was what led the defendant to record the rap videos, which otherwise, or certainly from the perspective of a defense lawyer at any rate, was inexplicable.

    In that sense the videos definitely showed “propensity”, but Prof Volokh says that propensity isn’t legitimate grounds for admission? Seems like it should be, or maybe in this case it could be evidence of motive? We know D was pimping because he wanted to be a pimp; he said so in this video.

    Perhaps it’s additional motive. We understand most crimes like this (selling illegal goods or services) are committed because D wants “easy” money. Different personalities are attracted to different crimes though, so perhaps it should be admissible for that reason.

  8. I’m shocked nobody linked it yet, but the below is obligatory when discussing this topic—

  9. I’m going to attack this a little bit backwards.

    1. I am in complete agreement with EV that the Court is incorrect on the harmless error analysis; having videos where the person on trial is performing and glamorizing the act charged, especially using language that many jurors would find offensive … inclusion of that is no harmless error.

    By the way- that’s a common thing I’ve seen in criminal appellate decisions that I hate. You don’t see that very often in civil appellate decisions. Sweep everything up with harmless error. Look, I genuinely get the concept that we can’t disturb a jury’s findings based on every small little issue, but you can’t just sweep everything under the rug of harmless error.

    2. But I disagree with EV that the probative value of the videos outweighs the prejudice. Other than, arguably, the song made after the initial arrest (which could have been introduced via a transcript of the lyrics and a witness stating that this referred to specific events), all of this was really about propensity. In other words, a lot of hip hop music glamorizes the thug lifestyle including selling drugs and prostitution; these videos are only being introduced in order to show propensity, and to inflame the jury.

    Which I totally get, if I was the prosecutor … but that’s not how it’s supposed to work. IMO.

    1. “In other words, a lot of hip hop music glamorizes the thug lifestyle including selling drugs and prostitution; these videos are only being introduced in order to show propensity, and to inflame the jury.”

      In what world is “propensity” not relevant?

      If you’re accused of doing something that you’ve always said is wrong, and you’d never do that, then a reasonable person could find it slightly more difficult to believe you’d done that (and slightly less likely to feel sympathy and make up extenuating circumstances once they are convinced you did it).

      But if you’ve publicly said “doing this is great, I love doing it”, what is your reasonable grounds for demanding that the prosecution not be allowed to use your own, freely given, words against you?

      1. In what world is “propensity” not relevant?

        Since the Star Chamber turned into a shitshow by the 17th century.

      2. The issue with propensity is it no more ties the defendant to the particular crime than a general description would. 5′ 10″, blond hair vs rap lyrics are both enough to get a person looked at but don’t actually tie them to the specific act. The rap lyrics are particularly bad because they’ll generate emotional responses in the jury but could be prior acts, fictional or second-hand instead of lyrical confession to the crime charged.

      3. In what world is “propensity” not relevant?

        Propensity absolutely is relevant. It’s just not admissible. We want juries to convict based on proof beyond a reasonable doubt that the defendant has committed the specific crime of which he is charged, rather than of evidence that he’s a bad person, or evidence that he seems like the type of person who would commit the crime.

        1. I guess nobody likes my theory that it goes to motive, not propensity.

  10. The opinion doesn’t explain any reason why there is any basis for interstate commerce juisdiction.

    What is this doing in federal court? Pornography is a thing, an article of commerce, like potted plants. Whoever much I may disagree with them, courts have said that simple posession of articles of commerce affects interstate trade in those articles enough to justify federal regulation.

    But since when is a woman’s body an article or instrumentality of commerce? And if it is, why can’t the federal government regulate marriage? Why can’t, for example, the federal government ban it?

    After all, every marriage takes an article of commerce that could have perfectly well been sold and used to benefit the economy off the interstate market. Surely that has a huge effect on interstate trade. If we take the fundamental fungability argument underlying the expansive concept of federal commerce power seriously, if a woman’s body is an article of commerce, surely a woman’s body married for a lifetime is completely fungable with a woman’s body rented by the hour. It’s all a commodity, right?

    And if the federal government can regulate trade in it, why can’t it regulate use of it, like abortion? That which is an article of interstate commerce is necessarily not private.

    The old laws required an explicit interstate commerce nexus, like transporting across state lines for purposes of prostitution, which had to be proved and was stated as part of the underlying facts in court decisions.

    1. Why couldn’t, for example, the federal government ban sex discrimination in marriage, except (of course) when done for a “legitimate” domestic purpose, such as an affirmative action plan to promote domestic gender diversity?

  11. It’s hard to see how the video made prior to the incident that talks about “selling white bitches” is probative of anything.

    It’s inadmissible character evidence (rule 404) and it’s prejudicial because a jury might convict him based on his admission of selling white bitches prior to the incident even if they weren’t convinced that he did so in this particular incident.

    1. According to news reports, one of the defendants is from La Grange, Texas. I wonder if they admitted that too.

    2. I thought Rule 404 is when the judge can’t find an applicable rule.

  12. I guess pimping is difficult, just as they say.

  13. I dont think that works.

    Certainly its tied to the specific crime right? If I committed armed robbery, and I have both evidence I committed the robbery, have a tape saying I’ve done robberies in the past makes it more likely that I have done so today.

    It’s not proof, but its part of the body of evidence. No one piece need be enough to convict someone. There is a difference between general admissions of character and specific statements that one has committed crimes openly in the past. If that’s all they had, fine, it doesn’t work, but it isn’t. Presumably they had the text messages …

    And the difference between this song and say, California Dreaming or Folsom Prison or even other gangsta rap is that one describes, clearly, a fictional scenario, and this alledues to something specific. To give an extreme example, this video certainly should be admissible:

    1. Certainly its tied to the specific crime right? If I committed armed robbery, and I have both evidence I committed the robbery, have a tape saying I’ve done robberies in the past makes it more likely that I have done so today.

      Again: prior bad acts are not inadmissible because they’re irrelevant; they’re inadmissible because they’re overly prejudicial.

  14. Meant as a reply to twelveincepianist

  15. I get that the song’s in, though I’m not sure what’s added by hearing it rather than having the lyrics read in a sort of Ellwood Blues voice. But the video is an enactment of the text, and he’s probably not even speaking the text. So it’s in for the lyrics which are probably coming from the audio master, and… demeanor? Committment to production values? Gesamtkunstwerk? Trim away the things you could get without the video footage, and it seems the fellow has a point about the potentially prejudicial enactment of a fiction.

    Mr. D.

  16. Do rappers really mean it when they talk about “keeping it real”?

    1. Really, when you come to think about it…what *is* reality, man?

      puff puff…

  17. You see, a pimp’s rights are very different from that of a square.

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