Facebook Posts Used to Convict Gang Member Upheld as Evidence
npr.org
The Second Circuit recently ruled that a criminal defendant’s First Amendment rights were not violated by introduction of Facebook pages containing a rap song and images of tattoos at his criminal trial.
Defendant Melvin Colon, a member of violent street gangs known as the “Courtlandt Avenue Crew” and "God's Favorite Children," was convicted in 2013 of multiple felonies including racketeering, murder, drug trafficking and illegal firearms possession.
According to the New York Law Journal, the evidence reaped from the defendant’s Facebook pages played an important role in establishing motive and culpability in the crimes:
“[The judge] allowed into evidence a video made in 2011 in the Melrose-Jackson Houses that showed Colon, a cooperating witness, and a number of GFC members, with Colon rapping about going after another crew ‘Young Gunnaz,’ and saying, ‘I'm a shooter.’
Pauley also allowed the video as evidence of Colon's association with members of the racketeering enterprise and his motive to attack members of Young Gunnaz.
Pauley further permitted Facebook photos, including one that showed a close-up of Colon's hand, showing a ‘Y.G.K.’ tattoo, which stands for ‘Young Gunnaz Killer.’
Other tattoos showed to the jury depicted ‘Courtlandt,’ the nicknames of Meregildo as well as a tattoo referring to a former leader of CAC.”
The tenuous basis of the First Amendment challenge was that the Constitution proscribes criminalization of speech, no matter how offensive, and that, by allowing into evidence examples of free speech expressed on the defendant’s Facebook page, the prosecutors had effectively criminalized such speech.
The Second Circuit disagreed, reasoning that the speech was not an element of the underlying crimes, but was merely used as evidence to prove the non-speech elements of the crimes. The Second Circuit also waved off challenges under the Fourth Amendment and Fifth Amendment to the Stored Communications Act, which allows the government to obtain copies of electronic communications from telecom and application service providers for a pending criminal investigation without permitting the suspect or defendant to obtain the same. The Court reasoned that the defendant had all of the same evidence obtained by the government and that the claim of additional exculpatory evidence was unsupported.
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