293 F. Supp. 3d 732
E.D. Mich.2017Background
- Defendants are charged in a RICO indictment alleging membership in the SMB gang operating in Detroit’s "RedZone" (zip 48205) and engaging in narcotics trafficking, firearms offenses, violence, and witness intimidation.
- The government moved to introduce 11 rap tracks and associated videos (posted to YouTube from 2013–2016) as evidence that defendants belonged to and acted in furtherance of the SMB enterprise.
- Government asserts tracks show membership identifiers (colors, tattoos, signs), discuss real events (e.g., convictions, alleged murders, "snitches"), and demonstrate relationships, intent, and methods (drug sales, intimidation, violence).
- Defendants argue the lyrics are artistic expression entitled to heightened First Amendment protection and/or are inflammatory, speculative, and not autobiographical—so they should be excluded.
- Court held the tracks are not merely abstract beliefs because the government tied lyrics to defendants’ actions; admissibility governed by the Federal Rules of Evidence (non‑hearsay, hearsay exceptions, Rule 403).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under First Amendment | Tracks are evidence of enterprise existence, membership, intent, means and acts, not punished for content | Lyrics are protected speech about public‑concern social conditions; admission would chill artistic expression | First Amendment does not bar admission where speech is used as evidence of independent criminal conduct; Dawson not applicable here because lyrics tied to acts |
| Relevance / Probative Value | Highly probative: establish membership, relationships, drug trafficking, witness intimidation, and corroborate events | Probative value is low because lyrics are metaphorical, fictional, and not clearly autobiographical | Probative value upheld where videos show defendants, territory, real media clips, and correlate to charged conduct; limited excerpts required |
| Hearsay and Statements Attribution | Statements either non‑hearsay (offered for effect), adoptive admissions, party opponent statements, or co‑conspirator statements in furtherance | Challenge to authenticity, speaker identification, and whether statements qualify under hearsay exceptions | Some lyrics admissible as non‑hearsay; others admissible under Rule 801(d)(2)(A)/(B) (adopted/party admissions) or 801(d)(2)(E) (co‑conspirator statements) if supported at trial; unidentified non‑co‑conspirator statements excluded unless exception shown |
| Rule 403 — Prejudice vs. Probative Value | Inflammatory content is no more so than charged violent crimes; clips narrowly targeted and can be limited by instruction | Lyrics are unduly prejudicial, confusing, cumulative, and risk juror bias | Admitted subject to limitations: government must propose specific excerpts with transcript, identify speakers and purpose; court will exclude unidentified hearsay, cumulative or irrelevant portions, and may give limiting instruction |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (music is protected expression but regulation evaluated on content, form, context)
- Wisconsin v. Mitchell, 508 U.S. 476 (1993) (First Amendment does not bar use of speech to establish elements, motive, intent)
- Dawson v. Delaware, 503 U.S. 159 (1992) (admission of group membership/abstract beliefs at sentencing impermissible where not tied to crime)
- Snyder v. Phelps, 562 U.S. 443 (2011) (determinative test for public vs. private concern in speech)
- United States v. Fell, 531 F.3d 197 (2d Cir. 2008) (speech evidence must be used for permissible purpose, not merely to show moral reprehensibility)
- United States v. Pierce, 785 F.3d 832 (2d Cir. 2015) (rap lyrics admissible to establish enterprise membership where speech used as evidence, not basis of prosecution)
- United States v. Stuckey, [citation="253 F. App'x 468"] (6th Cir.) (rap lyrics describing killings admissible as autobiographical statements matching charged crimes)
- United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999) (definition of unfair prejudice under Rule 403; gang evidence admissible when probative of central issues)