372 F. Supp. 3d 74
E.D.N.Y2019Background
- Defendant Larry Carpenter (aka rapper “Kontraversy”) is charged with: conspiracy to distribute heroin and cocaine base (Count One); using a firearm in furtherance of drug sales (Count Two); and being a felon in possession of a firearm (Count Three). Arrest occurred June 24, 2018 following undercover buys; a .38 revolver and two phones were recovered from the vehicle.
- Government seeks to admit music videos, song lyrics (from Device Two), and an interview, asserting they show drug-trafficking knowledge, relationships, quantities, and weapon possession tied to the charges.
- Videos at issue include “Young Bonnie” (firearm, drug references), “Might Not Make it Home” (brandishing a gun the government contends is the seized .38), and a “Tee-Talk Interview” where Carpenter claims his lyrics reflect his real-life conduct.
- Defendant moved to exclude the materials on relevance, Rule 403 prejudice, and First Amendment grounds; he also objects to admission of emails and jail calls the Government says show attempts to wipe the phone and delete video.
- Court found the videos/lyrics generally relevant to Counts One–Three and not unduly prejudicial compared to the charged crimes, but ordered a procedure limiting excerpts to those specifically proffered by the Government to reduce unfair prejudice.
- Court also permitted introduction of evidence of alleged obstructive conduct (phone-wiping instructions/deletion) as consciousness of guilt, subject to a limiting instruction if requested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of rap videos/lyrics as evidence | Videos/lyrics are direct evidence of drug trafficking, weapon possession, motive, relationships, and quantities | Irrelevant, unfairly prejudicial, and protected artistic expression under the First Amendment | Admissible as relevant and not unduly prejudicial; First Amendment does not bar evidentiary use of speech; limited admission procedure ordered |
| Rule 403 prejudice from inflammatory content | Probative value in proving elements outweighs prejudice | Profanity, misogyny, and violent imagery will unfairly prejudice jury | Not unduly prejudicial because content not more inflammatory than charged crimes; selective excerpts required to minimize prejudice |
| First Amendment challenge to use of artistic speech | N/A (Government seeks admission) | Admission of lyrics/videos would chill/free-speech rights and improperly punish artistic expression | Rejected: evidentiary use to prove elements, intent, or motive is permitted; context and connection to charged conduct control admissibility |
| Admissibility of obstructive-conduct evidence (emails/jail calls) | Shows defendant instructed associates to wipe phone and delete video, probative of consciousness of guilt | Objection because defendant not charged with obstruction | Admissible to show consciousness of guilt; court will allow limiting instruction to jury if requested |
Key Cases Cited
- United States v. Quattrone, 441 F.3d 153 (2d Cir.) (general discussion of unfair prejudice and relevance)
- United States v. Pierce, 785 F.3d 832 (2d Cir.) (rap lyrics admissible when relevant and not unfairly prejudicial)
- Old Chief v. United States, 519 U.S. 172 (Sup. Ct.) (definition and scope of "unfair prejudice")
- United States v. Kadir, 718 F.3d 115 (2d Cir.) (inadmissibility test for evidence creating unfair prejudice)
- United States v. Paulino, 445 F.3d 211 (2d Cir.) (evidence not unduly prejudicial if not more inflammatory than the charged crime)
- Wisconsin v. Mitchell, 508 U.S. 476 (Sup. Ct.) (First Amendment does not bar evidentiary use of speech to prove crime elements or intent)
- United States v. Fell, 531 F.3d 197 (2d Cir.) (distinguishing permissible evidentiary use of speech from impermissible use to show moral culpability)
- United States v. Foster, 939 F.2d 445 (7th Cir.) (artistic work admissible to show defendant's knowledge/connection to subject matter)
- Triumph Capital Grp., Inc. v. United States, 544 F.3d 149 (2d Cir.) (evidence of obstructive conduct admissible to show consciousness of guilt)
- United States v. Malpiedi, 62 F.3d 465 (2d Cir.) (similar principle on consciousness of guilt)