By Mark Hamblett, From New York Law Journal

Introducing a rap video and images of tattoos from a defendant’s Facebook page as evidence in a drug-and-murder gang prosecution did not violate the rights of the accused, a federal appeals court held Monday.

The U.S. Court of Appeals for the Second Circuit said Southern District Judge William Pauley did not implicate the First Amendment rights of defendant Melvin Colon by giving the song and the images to the jury.

Colon and co-defendants Earl Pierce and Joshua Meregildo were convicted in 2013 of racketeering, conspiracy, murder, narcotics trafficking and firearms offenses for their actions as part of the Courtlandt Avenue Crew, or “CAC,” a violent street gang. The crew operated out of the Melrose Public Housing Developments and the Andrew Jackson Houses in the Melrose section of the Bronx. Colon and Meregildo also belonged to another gang called “God’s Favorite Children” or “GFC.”

The trial included 40 witnesses, five of whom were former members of the gangs, and physical evidence including seized drugs and firearms used in the killing of rival gang members, including Colon’s murder of suspected law enforcement informant Delquan Alston on Aug. 27, 2010.

Pauley allowed into evidence a video made in 2011 in the Melrose-Jackson Houses that showed Colon, a cooperating witness, and a number of GFC members, with Colon rapping about going after another crew “Young Gunnaz,” and saying, “I’m a shooter.”

Pauley also allowed the video as evidence of Colon’s association with members of the racketeering enterprise and his motive to attack members of Young Gunnaz.

Pauley further permitted Facebook photos, including one that showed a close-up of Colon’s hand, showing a “Y.G.K.” tattoo, which stands for “Young Gunnaz Killer.”

Other tattoos showed to the jury depicted “Courtlandt,” the nicknames of Meregildo as well as a tattoo referring to a former leader of CAC.

Meregildo was sentenced to life in prison plus five years, Colon to 35 years and Pierce 50 years. The trio appealed to the Second Circuit, where Judges Amalya Kearse, Richard Wesley and Denny Chin heard oral argument on Oct. 17, 2014.

The judges upheld the convictions of all three men against several challenges, including their claim the evidence was insufficient, and Colon’s allegations that the Stored Communications Act was unconstitutional and that Pauley erred in admitting the rap video and the tattoos.

Colon argued that his First Amendment rights were violated because courts should not “sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects,” Street v. New York, 394 U.S. 576 (1969).

But Chin, writing for the court, called the challenge “meritless” because the speech here is not the prescribed conduct.

“The speech was not the basis for the prosecution, but instead it was used to established the existence of, and Colon’s participation in, the alleged RICO enterprise,” he said in United States v. Pierce, 13-3687-cr.

Colin also had argued that the rap lyrics were “fictional artistic expressions” and “perverse puffery” and should not have been admitted to help convict him.

Chin disagreed.”Rap lyrics and tattoos are properly admitted … where they are relevant and their probative value is not substantially outweighed by the danger of unfair prejudice,” he said.

The introduction of rap lyrics is a growing trend in criminal gang prosecutions and has prompted concern among members of the defense bar (NYLJ, April 28 and May 9, 2014).

Here, Chin said, “The government proferred the rap video to show Colon’s animosity toward the Young Gunnaz, as well as his association with CAC.”

“The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty” to Meregildo and another fellow gang member—”indeed other members of CAC had similar tattoos,” he said.

Chin went on to deny Colon’s challenge to the Stored Communications Act, §2703(c)(1)-2703(d), which allows the government to obtain, from communications companies or remote computing services, information such as Facebook posts when there are reasonable grounds to believe it is “relevant and material to an ongoing criminal investigation.”

The act does not allow a private individual to obtain the same content—and Colon was denied Facebook posts from Devin Parsons, a cooperating witness. That, he argued, was a violation of his Fifth Amendment right to due process and his Sixth Amendment right to confront an adverse witness.

Pauley had quashed a subpoena for the posts, but Colon’s counsel was able to obtain them anyway by using a private investigator, so Chin said it was unnecessary to address the constitutionality of the act.

“Colon possessed the very contents he claims the [act] prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons account is purely speculative,” he said.

The government was represented by Southern District Assistant U.S. Attorneys Nola Heller, Adam Fee, Santosh Aravind and Brian Jacobs.

Mitchell Dinnerstein represents Colon. Gwen Schoenfeld represents Pierce. Ying Stafford represents Meregildo.

IMAGE: Spencer E. Holtaway/flickr

For more on this story go to: http://www.newyorklawjournal.com/id=1202726114182/Circuit-Says-Facebook-Posts-Were-Properly-Used-as-Evidence#ixzz3ZvnCsu5Z