The Volokh Conspiracy
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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.