United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Before the court are (1) Defendant's Motion in Limine to Preclude Rap Music and Related Video and Audio Content ("Def. Rap Mot." (Dkt. 426)), and (2) the Government's Letter Motion in Limine to preclude the testimony of Defendant's proffered expert ("Gov't Expert Mot." (Dkt. 445)). For the following reasons, both motions are DENIED.
The court refers to its March 3, 2014, Memorandum and Order for a fuller recitation of the factual background and charges in this case. (Dkt. 339.) Defendant Ronald Herron is charged in a twenty-three count superseding indictment for criminal activity in connection with his alleged leadership of a criminal enterprise. (See Superseding Indictment (Dkt. 217).) These charges include, among others, racketeering (count one), racketeering conspiracy (count two), murder in-aid-of racketeering (counts five, twelve, and eighteen), conspiracy to distribute narcotics (counts three and eleven), and firearms offenses (counts four, seven, ten, fourteen, twenty, twenty-two, twenty-three). (Id.)
II. DEFENDANT'S MOTION TO PRECLUDE RAP VIDEOS AND LYRICS
A. The Video Evidence
Defendant is an aspiring "gangsta rap" artist who has performed under the stage name "Ra Diggs." (Def. Rap Mot. at 1, 4.) Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, the Government produced to Defendant a series of videos featuring him, which fall into two categories: (1) music videos in which Defendant performs rap songs, and (2) videos labeled "Ra Diggs TV - Project Music, " which include less formal footage of Defendant addressing the camera, conversing with other people, driving a car, or rapping freestyle or a cappella. (Id. at 1-2.) Defendant characterizes the Ra Diggs TV videos as "promotional materials" (Def. Rap Mot. at 6), while the Government characterizes them as "documentary-style videos" (Gov't Opp'n to Def. Rap Mot. ("Gov't Opp'n") at 10). The Government's production included multiple music videos and thirteen Ra Diggs TV videos (Def. Rap Mot. at 2), collectively referred to in this Order as the "rap-related videos." The videos are each less than ten minutes in length; include references to gangs, violence, and drug dealing; and present images of Defendant displaying gang signs and using firearms. (Id. at 2; Gov't Opp'n at 2.) They contain extensive use of profanity and racial and homophobic slurs. (See Def. Rap Mot. Sealed Exs. A-D.)
Of the rap-related videos, the Government seeks to introduce excerpts of at least eight videos-four music videos and four Ra Diggs TV videos-for various purposes:
to establish the existence, structure, purpose, methods, and means of the charged Ronald Herron Enterprise; the defendant's role as leader of the enterprise; the relationships of trust among the defendant and his co-conspirators, including several of the government's cooperating witnesses; the defendant's unlawful possession and use of firearms; and specific crimes committed by the defendant to further the goals of the enterprise and to maintain his position as its leader.
(Gov't Opp'n at 3.) The Government provides a brief summary of each proffered video and for most, articulates the specific evidentiary purpose for which it is offered. (See id. at 3-5.) The Government has not specified which segments it plans to use from these eight videos or whether it also seeks to introduce or read into evidence a transcript of their lyrics or dialogue.
Defendant seeks to exclude the rap-related videos and their lyrics "nearly in [their] entirety" on the grounds that (1) they are protected speech under the First Amendment, and (2) that their content is irrelevant, contains hearsay, and is unduly prejudicial under the Federal Rules of Evidence. (Def. Rap Mot. at 4, 6, 15.) Defendant also requests a pre-trial hearing at which the court will view the rap-related videos and hear argument regarding their admissibility. (Id. at 3.) The Government contends that neither ground supports exclusion of the rap-related videos.
B. First Amendment
Defendant asserts that admission of the rap-related videos into evidence will violate his right to free expression under the First Amendment. (Id. at 6.) Arguing that the rap-related videos are a "commentary on urban crime and violence, drug wars, and the utter lack of hope in the inner city" (id. at 10) and were directed toward the public through internet dissemination, radio plays, and live performances, Defendant contends that they are speech on matters of public concern. (Id. at 6-7.) Defendant maintains that such public speech is entitled to "special protection under the First Amendment" as articulated by Snyder v. Phelps, 131 S.Ct. 1207 (2011). (Def. Rap Mot. at 12-13 (quoting Snyder, 131 S.Ct. at 1219).) The Government contends that Snyder v. Phelps has no bearing on the evidentiary issue before the court. (Gov't Opp'n at 11.)
Defendant reads the Supreme Court's holding in Snyder v. Phelps too broadly. That case concerned the imposition of tort liability for the expression of speech itself. Snyder, 131 S.Ct. at 1219 (affirming the lower court's decision to overturn a jury verdict that imposed civil liability for intentional infliction of emotional distress caused by the defendants' picketing of a soldier's funeral). The Court did not address the reach of the First Amendment in connection with the use of speech as evidence in criminal trials. Furthermore, the Court expressly cabined its holding to the facts before it. Id. at 1220 ("Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.").
In the evidentiary context, the Supreme Court has recognized that "[t]he First Amendment... does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993); see also Dawson v. Delaware, 503 U.S. 159, 165 (1992) ("[T]he Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations...."). The Second Circuit has also upheld the use of evidence of political speech or beliefs to prove the existence of a conspiracy and its motive. See United States v. Salameh, 152 F.3d ...