United States District Court, S.D. New York
OPINION & ORDER
COTE United States District Judge.
30, 2017, the Government identified excerpts from eight rap
videos that it seeks to introduce into evidence at the trial
scheduled to begin on June 12. On June 2, the defendants
Corey Brown (a/k/a “CB”) and Josnel Rodriguez
(a/k/a “DO”) each submitted a letter motion
seeking to preclude the admission of these rap video
excerpts. The Government responded on June 3.
Rule 801(d), an out-of-court statement offered for the truth
of its contents is not hearsay if “[t]he statement is
offered against an opposing party” and it “was
made by the party's coconspirator during and in
furtherance of the conspiracy.” Rule 801(d)(2)(E),
Fed.R.Evid. In order to admit a statement under this Rule,
the court must find: “(a) that there was a conspiracy,
(b) that its members included the declarant and the party
against whom the statement is offered, and (c) that the
statement was made during the course of and in furtherance of
the conspiracy.” United States v. Gupta, 747
F.3d 111, 123 (2d Cir. 2014) (citation omitted). Although
Rule 801(d)(2)(E) “requires that both the declarant and
the party against whom the statement is offered be members of
the conspiracy, there is no requirement that the person to
whom the statement is made also be a member.”
Id. at 125 (citation omitted). “In determining
the existence and membership of the alleged conspiracy, the
court must consider the circumstances surrounding the
statement, as well as the contents of the alleged
coconspirator's statement itself.” Id. at
123 (citation omitted).
be in furtherance of the conspiracy, a statement must be more
than a merely narrative description by one co-conspirator of
the acts of another.” Id. (citation omitted).
Thus, while “idle chatter between co-conspirators does
not further a conspiracy . . . statements between
conspirators which provide reassurance, serve to maintain
trust and cohesiveness among them, or inform each other of
the current status of the conspiracy, further the ends of a
conspiracy.” Id. at 124 (citation omitted). In
addition, statements “designed to induce the
listener's assistance with respect to the
conspiracy's goals” -- i.e., statements that
“prompt the listener to respond in a way that
facilitates the carrying out of criminal activity” --
satisfy Rule 801(d)(2)(E)'s in-furtherance requirement.
Id. at 125 (citation omitted).
finding as to whether or not a proffered statement was made
in furtherance of the conspiracy should be supported by a
preponderance of the evidence, and such a finding will not be
overturned on appeal unless it is clearly erroneous.”
Id. At 124 (citation omitted). The court's
ultimate decision to admit or exclude a proffered statement
is reviewed for abuse of discretion. Id.
to Rule 403, even relevant evidence may be excluded “if
its probative value is substantially outweighed by a danger
of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403. Evidence offered
by the Government is by design prejudicial to a defendant.
See United States v. Quattrone, 441 F.3d 153, 186
(2d Cir. 2006) (“All evidence introduced against a
defendant, if material to an issue in the case, tends to
prove guilt, but is not necessarily prejudicial in any sense
that matters to the rules of evidence.” (citation
Second Circuit has held that “[r]ap lyrics . . . are
properly admitted . . . where they are relevant and their
probative value is not substantially outweighed by the danger
of unfair prejudice.” United States v. Pierce,
785 F.3d 832, 841 (2d Cir. 2015). In Pierce, the court
affirmed the admission of rap videos where the videos helped
establish a defendant's association with members of an
enterprise and the defendant's motive to participate in
the charged conduct. Id. at 840-41.
403 requires a court to examine whether the evidence is
“unfairly” prejudicial. “The term
‘unfair prejudice, ' as to a criminal defendant,
speaks to the capacity of some concededly relevant evidence
to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.”
Old Chief v. United States, 519 U.S. 172, 180
(1997). Unfair prejudice exists where the evidence has a
tendency to suggest that a decision be made on an
“improper basis.” Id. “[E]vidence
is unduly prejudicial only when it tends to have some adverse
effect upon a defendant beyond tending to prove the fact or
issue that justified its admission into evidence.”
United States v. Kadir, 718 F.3d 115, 122 (2d Cir.
2013) (citation omitted). For instance, “[t]he
prejudicial effect may be created by the tendency of the
evidence to prove some adverse fact not properly in issue or
unfairly to excite emotions against the defendant.”
United States v. Mercado, 573 F.3d 138, 146 (2d Cir.
2009) (citation omitted).
Second Circuit has declined to find probative evidence which
is properly used at trial unduly prejudicial under Rule 403
where it “did not involve conduct more inflammatory
than the charged crime.” United States v.
Paulino, 445 F.3d 211, 223 (2d Cir. 2006) (citation
omitted); see also United States v. Pitre, 960 F.2d
1112, 1120 (2d Cir. 1992) (finding no error with regard to
Rule 403 where the evidence of prior crimes “did not
involve conduct any more sensational or disturbing than the
crimes with which [the defendants] were charged”
(citation omitted)). When relevant evidence is unfairly
prejudicial, “Rule 403 requires the trial court to make
a conscientious assessment of whether the probative value of
the evidence on a disputed issue in the case is substantially
outweighed by the prejudicial tendency of the evidence to
have some other adverse effect upon the defendant.”
Mercado, 573 F.3d at 146 (citation omitted).
“a criminal defendant may not stipulate or admit his
way out of the full evidentiary force of the case as the
government chooses to present it.” United States v.
Salameh, 152 F.3d 88, 122 (2d Cir. 1998) (quoting
Old Chief v. United States, 519 U.S. 172, 186-87
(1997)). In other words, “the Government generally has
a right to present evidence of a fact that a defendant would
prefer to admit, so as to establish the human significance of
the fact and to implicate the law's moral
underpinnings.” United States v. Velazquez,
246 F.3d 204, 211 (2d Cir. 2011) (citation omitted).
on the principles recited above, the Government's request
to introduce the excerpts is granted with the following
limitations. The excerpt of “Ooouuu” is admitted
in the event “Witness 1” testifies at trial. The
excerpt of “Oh Lord” is admitted on the condition
that it is edited to exclude the images of an individual
running through trees as if he is being observed through
binoculars. The jury shall be advised that the clip has been
edited and they are not to speculate about images that are
not being shown. The parties may also propose a different
instruction to that proposed here. ...