Memes Admissible as Intrinsic Evidence of Prostitution Charge Under Fed. R. Evid. 404(b)(2), Holds Tenth Circuit

In United States v. Alfred, No. 19-1243 (10th Cir. Dec. 14, 2020), the Tenth Circuit finds no error in admission of memes from the defendant’s social media page as “intrinsic evidence” of his facilitation and solicitation of prostitution under Fed. R. Evid. 404(b)(2) and 403.

The defendant allegedly used the social-media site Tagged to operate a prostitution business. Defendant sent sixty-five Tagged users messages asking “What’s good wit cha ma[?]” The FBI, behind a false profile with the screenname “G-Baby,” responded to the message. The response, under the name “Nikki,” triggered a chat where defendant encouraged “’Nikki’ to engage in sex acts for money, explaining terms, pricing structure, and other elements of prostitution culture” and gave “her explicit guidance on the who, what, where, and how of meeting sex buyers.” This led to a scheduled meet-up in Houston, Texas, where defendant was arrested. Eventually a “jury found Mr. Alfred guilty on both counts” and defendant was sentenced to “21 months’ imprisonment on each count, to run concurrently.”

On appeal, the defendant challenged the admission of six suggestive 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 contained 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.”

The Tenth Circuit affirms the conviction and finds no error in admitting the memes. Federal Rules of Evidence 404(b)(1) generally excludes evidence of prior acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” But the United States got the evidence admitted as evidence “intrinsic” to the charge crime of prostitution under Fed. R. Evid. 404(b)(2). The memes, by the government’s theory, declared the defendant to be a “pimp” in the business of trafficking prostitutes. The memes thus provided evidence that the defendant “knowingly attempted to persuade, induce, entice, or coerce [Nikki] to travel in interstate commerce.”

The defendant disputed that the memes could be readily seen by others and constituted part of his social media “brand.” He argued, for instance, that there was no evidence that anyone other than “G-Baby” could view the memes due to his privacy settings. Nevertheless, the panel holds that it was “reasonable to infer Mr. Alfred would similarly friend other women he sought to recruit. On the other hand, if Mr. Alfred did not friend G-Baby, it must be the case that his profile was set to public view. Either way, it is reasonable to infer that any women Mr. Alfred was trying to recruit were able to see the memes.”

Defendant also argued that “the district court misunderstood social media because posts are ‘meant to be taken as ephemera, as fleeting thoughts,’” while the district court judge found that they constituted a user’s “‘storefront’ or as a business webpage.’” On this theory, memes would be unreliable evidence of the user’s intent. But the panel holds that this argument “ignores the integral nature of social media to Mr. Alfred’s attempts to solicit prostitution …. Tagged was the means by which the criminal conduct occurred and a jury could conclude Mr. Alfred’s easily accessible memes and pictures were an integral part of the solicitation attempt and advancement of his business. As the district court held, that the memes were readily available ‘combined with other evidence where he is reaching out to various other people in what the government characterizes … as an attempt to solicit people . . . make[s the memes] intrinsic.’”

The panel also affirms the finding that admission of the memes was not unfairly prejudicial under Fed. R. Evid 403. “The maximum probative value of the memes was significant. As discussed, a jury could conclude from the memes that Mr. Alfred was branding himself as a pimp …. The danger of unfair prejudice from the memes was relatively low in the context of the charges. The government was required to prove beyond a reasonable doubt that Mr. Alfred’s involvement in pimping was not casual or sporadic …. 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.”

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