UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MELVIN ROSHARD ALFRED, a/k/a King Maybach, Defendant - Appellant.
No. 19-1243
United States Court of Appeals, Tenth Circuit
December 14, 2020
PUBLISH
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CR-00463-PAB-1)
Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender and Grant R. Smith, Assistant Federal Public Defender, on the briefs), Denver, Colorado, for Defendant-Appellant.
Elizabeth S. Ford Milani, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before BRISCOE, BALDOCK, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
A jury convicted Melvin Roshard Alfred of coercion and enticement in violation of
Before trial, the government indicated it intended to admit eight “memes“—pictures with text over them or pictures of text. Mr. Alfred had posted the memes on Tagged in or before 2015, three years prior to Mr. Alfred‘s contact with the FBI-run profile. The memes сontained laudatory references to pimping and pimping culture and also contained graphic depictions suggesting dire consequences of engaging in prostitution without a pimp. The district court concluded the memes were admissible as intrinsic evidence of the crimes charged and that the probative value of six of the eight memes was not outweighed by the danger of unfair prejudice. The district court excluded the other two memes under Rule 403.
On appeal, Mr. Alfred argues the district court abused its discretion in finding the memes were intrinsic еvidence of the charged counts and in finding the probative value of the six memes admitted was not outweighed by the danger of unfair prejudice. Exercising jurisdiction under
I. BACKGROUND
A. Factual History
The charges here stem from Mr. Alfred‘s activities on Tagged, a social media website. Three aspects of Tagged are relevant: (1) users’ ability to create profile pages; (2) users’ ability to post images; and (3) users’ ability to chat with one another. When
Mr. Alfred went by the alias “King Maybach” on Tagged, and included a picture of a crown before “Maybach” on his profile page. Mr. Alfred‘s profile stated he was a straight, single, twenty-nine-year-old, Black, Christian male and included a picture of him. It also included the tagline “I like how it feels but it[‘]s better when it pays the bills.” ROA, Vol. I at 100. During the investigation period, Mr. Alfred sent sixty-five Tagged users messages asking “What‘s good wit cha ma[?]”1 ROA, Vol. IV at 716-17.
One of these accounts was a false profile with the screenname “G-Baby,” that was created by law enforcement to target sex traffickers. Using photographs provided by a confidential source, G-Baby purported to be a nineteen-year-old woman in Colorado. The G-Baby account responded to Mr. Alfred‘s “What‘s good wit cha ma[?]” opening and the two chatted. Special Agent Craig Tangeman, the government agent controlling the
Mr. Alfred encouraged “Nikki” to find a “trick“—a sex buyer—to obtain the funds to travel to Houston, Texas, where he lived. Agent Tangeman portrayed “Nikki” as concerned about engaging in prostitution and asked Mr. Alfred to explain its terminology. Mr. Alfred continued to push “Nikki” to engage in sex acts for money, explaining terms, pricing structure, and other elements of prostitution culture, and he gave her explicit guidance on the who, what, where, and how of meeting sex buyers.
A confidential source posing as “Nikki” ultimately called Mr. Alfred and told him she had engaged in a sex act for money and was able to purchase a bus ticket to Houston. Mr. Alfred agreed to meet “Nikki” at the bus station. Law enforcement was waiting at the bus station and arrested Mr. Alfred, who had a loaded gun with him as well as the cell phone he used to contact “Nikki.”
B. Procedural History
The government initially charged Mr. Alfred with attempted coercion and enticement in violation of
The district court held a pretrial hearing on the admission of the memes. Because the court had an admitted unfamiliarity with social media, much of the hearing focused on the mechanics of how the site operated with respect to the memes posted by Mr. Alfred and what inferences could reasonably be drawn from his choice to leave the posts up. The government argued the memes remained accessible through Mr. Alfred‘s Tagged account during the relevant time рeriod and were part of the “brand” he used to recruit sex workers. ROA, Vol. IV at 879-80. It also argued the memes were intrinsic to the enticement count because what was visible on Mr. Alfred‘s Tagged account was a part of his attempt to recruit Nikki. Mr. Alfred disagreed with the government‘s characterization. He argued the memes were “a historical record of things that he has thought and said and did and posted” from years prior that did not reflect his thinking during the relevant time period and that they were buried under three years of subsequent activity on Tagged. Id. at 866.
The district cоurt referred to the memes being posted “to what I am going to call a landing page. . . . [I]t‘s not like this is a billboard, but this is what someone would see if Mr. Alfred had reached out to the person in an offer to communicate.” Id. at 894-95.
[T]hose memes were available and I find that they were readily available, the nature of the website readily available. And as a result, I find that in fact they are intrinsic because they are the types of things that can be easily seen. And at least under the government‘s theory about their relevance to Count 2, they would be evidence of his business enterprise, namely, that he is using those memes as displaying what he is about. And under the government‘s theory at least, what he is about is pimping.
And thаt combined with other evidence where he is reaching out to various other people in what the government characterizes them as an attempt to solicit people, the fact that he is making those available on his landing page I believe make them intrinsic. So as a result, that aspect of the request to exclude them is denied.
Id. at 896-97.
Mr. Alfred moved to sever the two counts on the ground the memes were intrinsic only to the second count. The district court disagreed, stating: “I find that the memes at issue are intrinsic to Count One for the exaсt same reason. . . . I think that the nature of that landing page is such that it would be very easy and likely that a person would look through multiple photos.” Id. at 904-05.
The district court, however, did exclude two of the memes under
During trial, the government referred to the memes three times: in its opening statement, during its examination of Agent Tangeman, and in its closing argument. Agent Tangeman‘s testimony featured the memes somewhat prominently, including informing the jury as to the meaning of terms used in them. He also testified about Mr. Alfred‘s interactions with “Nikki,” including Mr. Alfred‘s instructions on how to find a trick and the terminology of prostitution. In addition to Agent Tangeman, the government called three witnesses: Houston Police Officer Stephen Poprik, Special Agent Theo Williams, and Special Agent Robert Spivey. Officer Poprik was a Houston police officer involved in arresting Mr. Alfred; Agent Williams was the coordinator for the Houston division of the FBI who arranged the arrest; and Agent Spivey coordinated the operation from thе Denver FBI division. The defense called one witness, Eugeniia Sedova. Ms. Sedova met Mr. Alfred on Tagged and testified he advised her on job seeking without suggesting sex work.
The jury found Mr. Alfred guilty on both counts. The district court sentenced him to 21 months’ imprisonment on each count, to run concurrently. The district court entered judgment on July 2, 2019, and Mr. Alfred timely filed a notice of appeal on July 8, 2019.
II. DISCUSSION
The question on appeal is whether the admission of the memes was barred by
“We review the admission of evidence for abuse of discretion and will not reverse if the district court‘s ruling falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical.” United States v. Durham, 902 F.3d 1180, 1222 (10th Cir. 2018) (internal quotation marks omitted). “A district court abuses its discretion only where it (1) commits legal error, (2) relies
A. Rule 404(b)
“Because
The government‘s arguments in this case are addressed to the elements of the charges, although “[w]e have never required that the other-act evidence establish an element of the charged offense.” Irving, 665 F.3d at 1212; see also Kupfer, 797 F.3d at 1238 (listing situations where evidence is intrinsic). To prove Mr. Alfred‘s guilt on count one, the government needed to prove beyond a reasonable doubt he “knowingly attempted to persuade, induce, entice, or coerce [Nikki] to travel in interstate commerce, and . . . made this attempt with the intent for [Nikki] tо engage in prostitution.” United States v. Tee, 881 F.3d 1258, 1263-64 (10th Cir. 2018). To prove his guilt on count two, the government needed to prove beyond a reasonable doubt Mr. Alfred “used [a] facility in interstate commerce with the intent to facilitate the promotion, management, establishment, or carrying out of an unlawful activity, and . . . attempted to promote, manage, establish, or carry out an unlawful activity.” Id. at 1266. It also needed to show “that [his] involvement in a proscribed activity [was] more than ‘sporadic’ or ‘casual,‘” but this showing could be made through a single transactiоn. United States v. Bernaugh, 969 F.2d 858, 865 (10th Cir. 1992). The government argues the memes were intrinsic to count one because they were part of Mr. Alfred‘s efforts to persuade Nikki to work as a prostitute, and they were intrinsic to count two because Mr. Alfred‘s attempt to brand himself as a pimp was part of an ongoing business enterprise.
Mr. Alfred argues the district court abused its discretion in finding the memes were intrinsic evidence by relying on clearly erroneous findings of fact—that the memes were available on Mr. Alfred‘s profile page and that memes from three years beforе the charged conduct were part of an attempt to cultivate a brand. He also claims the district court abused its discretion by making a clear error in judgment manifested as misunderstandings about social media. Mr. Alfred does not contest that
1. Findings of Fact
In support of his argument that the district court made clearly erroneous findings of fact about the accessibility of the memes, Mr. Alfred cherry-picks portions of the pretrial hearing in which the district court made a mistake of terminology or otherwise indicated it was not familiar with social media. E.g. Reply Br. at 2 (quoting the district court as stating “these memes . . . were posted to what I am going to call a landing page” and the memes were ”available on his profile page or landing page” (quoting ROA, Vol. IV at 894-95)) (emphasis in Reply Brief). Mr. Alfred argues the district court‘s finding that the memes were available on his profile page was critical to its conclusion that the memes were an attempt to cultivate a brаnd. But a comprehensive reading of the transcript shows the district court understood the salient points: that the memes were accessible by clicking either of two links on Mr. Alfred‘s profile page and thus they could be “easily seen” by others he was in contact with, even though they were posted three years prior to the relevant period. ROA, Vol. IV at 895-97.
Mr. Alfred argues that because he could have set his profile to be accessible only to people he friended, and the government failed to show that anybody but G-Baby could accеss them, there was no evidence the memes were readily available. This argument is unpersuasive. According to Mr. Alfred, it is reasonable to presume
Mr. Alfred also argues “he had posted 107 photos. Of these, the government only sought to introduce eight memes that related to pimping. The fact that less than eight percent of his photos were related to pimping undermines any notion that Mr. Alfred was finely curating his online presence in an attempt to cultivate his image as a pimp.” Appellant Br. at 16. But as counsel conceded at orаl argument, the government entered or sought to enter far more than eight photos from Mr. Alfred‘s Tagged account, including not only memes but also pictures it claimed were designed to promote Mr. Alfred‘s brand. One picture, for example, shows Mr. Alfred ironing money next to a gun; others portrayed material goods—earrings, shoes, and guns—which the district court held were relevant to pimping culture. Because all of these images were available on Mr. Alfred‘s Tagged account to those he sought to recruit, the district court did not abuse its discretion in allоwing the jury to consider whether Mr. Alfred was using them to cultivate a brand.
The district court‘s factual findings about the availability and purpose of the memes are not erroneous, let alone clearly erroneous.
2. Understanding of Social Media
Regarding the asserted clear error in judgment, Mr. Alfred argues the district court misunderstood social media because posts are “meant to be taken as ephemera, as fleeting thoughts,” but the district court “attempted to view all Tagged usage as a ‘storefront’ or as а business webpage.” Appellant‘s Br. at 18; see also Reply Br. at 4-8 (arguing that “the true nature of memes and social media” undermines the district court‘s decision and government‘s response, and that “[m]emes are not reflective of the poster‘s core beliefs, values, or ideas; but are riffs on oftentimes mundane social situations or cultural-specific wordplay“). According to Mr. Alfred, “[t]he fatal flaw in the government‘s argument is that it presupposes that Mr. Alfred had a brand to begin with. . . . [T]here is no evidence that Mr. Alfred was using social media in the
This argument ignores the integral nature of social media to Mr. Alfred‘s attempts to solicit prostitution. Mr. Alfred cites United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir. 2010), for its conclusion that the admission of a social media profile was “classic evidence of bad character, which was offered by the government to prove only ‘action in conformity therewith.‘” (quoting
The district cоurt did not abuse its discretion in finding the evidence admissible for the purposes of showing Mr. Alfred‘s “brand” on Tagged. Record evidence demonstrates Mr. Alfred was using Tagged to solicit at least one Tagged
B. Rule 403
Under
The parties disagree about the probative value of the memes. Mr. Alfred maintains “the probative value of the evidence is extremely minimal” because (1) he reposted the memes from other users; (2) “the time framе on its own makes them too attenuated“; and (3) he was engaged in puffery both in posting the memes and in recruiting “Nikki.” Appellant Br. at 19-21. In his reply brief, Mr. Alfred further argues the memes were “not advancing anything other than humor.” Reply Br. at 13. The government, in turn, contends the memes provided context for Mr. Alfred‘s attempts to get “Nikki” to engage in prostitution and were evidence of Mr. Alfred‘s
The maximum probative value of the memes was significant. As discussed, a jury could conclude from the memеs that Mr. Alfred was branding himself as a pimp. Mr. Alfred‘s arguments that the memes’ probative value was lessened by his reposting them from other users and that he was engaged in puffery do not affect the maximum probative force of the memes. See Henthorn, 864 F.3d at 1256. And while the fact they were posted years earlier might slightly diminish their probative value, the memes were available in real time to a visitor to Mr. Alfred‘s profile page with the click of a mouse. Furthermore, many of the memes specifically reference why a sex worker benefits from having a pimp. In short, they are probative of Mr. Alfred‘s attempt to use his Tagged profile to facilitate a pimping business by demonstrating to his potential recruits on Tagged the benefits of having a pimp. As a result, the memes support the government‘s charge that his interaction with “Nikki” was not a casual or sporadic incident. They also refute Mr. Alfred‘s defense that his interactions with “Nikki” were in jest. The memes were therefore probative of the charges against Mr. Alfred.
We turn now to whether the probative value of the memes is substantially outweighed by the risk of unfair prejudice.
Mr. Alfred suggests these memes were “textbook propensity” evidence, which might lead the jury to find “because Mr. Alfred posted these memes, he disrespects women and likely acted in conformity with that character trait when he attempted to solicit G-Baby to become a prostitute.” Appellant Br. at 21.5 The government suggests any prejudice was not unfair because it “flowed from the memes’ legitimate probative force—providing context and background tо the jury regarding [Mr.] Alfred‘s communications with Nikki and the other Tagged users—[and] not from” forbidden propensity inferences. Appellee Br. at 39. It also suggests any unfair prejudice was reduced because the district court excluded some memes; the government did not focus on the memes at trial; and the distasteful nature of the
memes was due to the distasteful nature of the charges. The government has the better argument.
The danger of unfair prejudice from the memes was relatively low in the context of the charges. The government was required to provе beyond a reasonable doubt that Mr. Alfred‘s involvement in pimping was not casual or sporadic. Bernaugh, 969 F.2d at 865. It met that burden by providing evidence of the explicit discussions Mr. Alfred had with Nikki describing terminology and practices used in the sex trade and his suggestion that she turn a “trick” to get the money to travel to him. While the memes provided other evidence of Mr. Alfred‘s long-held interest in pimping, any prejudice arose from the fact that they tended to show Mr. Alfred was, aspired to be, or held himself out as, a pimp. This was probative of an element of the offense.
“The triаl court has broad discretion to determine whether prejudice inherent in otherwise relevant evidence outweighs its probative value.” Irving, 665 F.3d at 1214 (quotation marks omitted). As the maximum probative value of the memes was high and the minimum unfair prejudice relatively low, the district court acted well within its discretion in holding that any danger of unfair prejudice did not substantially outweigh the memes’ probative value.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
McHUGH
UNITED STATES CIRCUIT JUDGE