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United States v. Alfred.

No. 19-1243.  D.Colo. Judge McHugh. Coercion and Enticement—Facilitating Prostitution—Fed. R. Evid. 404(b)—Intrinsic Evidence—Fed. R. Evid. 403.

December 14, 2020

Defendant used the social media website Tagged to attempt to convince a person he believed was a 19-year-old woman to engage in prostitution. Defendant encouraged her to engage in sex acts for money so that she could afford a bus ticket to where he lived. When the woman communicated that she was able to purchase a bus ticket, defendant agreed to meet her at the bus station. Defendant was in fact communicating with an FBI agent, and law enforcement arrested him at the bus station.

The district court held a pretrial hearing pertaining to the admissibility of eight “memes” that defendant had posted on Tagged. The memes contained laudatory references to pimping and pimping culture and contained graphic depictions suggesting dire consequences of engaging in prostitution without a pimp. The district court concluded that the memes were admissible as intrinsic evidence of the crimes charged and were not barred by Fed. R. Evid. 404(b), and the probative value of six of the eight memes was not outweighed by the danger of unfair prejudice under Rule 403. The court excluded two of the memes. Defendant was convicted of attempted coercion and enticement in violation of 18 USC § 2422 (count 1) and facilitating prostitution in violation of 18 USC § 1952 (count 2).

Defendant argued on appeal that the district court abused its discretion in finding that the memes were intrinsic evidence of the charged counts. Rule 404(b) only limits evidence of crimes extrinsic to the charged crime. Evidence of acts or events that are part of the crime itself, or evidence essential to the context of the crime, does not fall under the other crimes limitation. Evidence is “intrinsic” when it is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury. Here, the memes were intrinsic to count one because they were part of defendant’s attempts to persuade Tagged users to engage in prostitution, and they were intrinsic to count two because Tagged was the means by which the criminal conduct occurred, and a jury could conclude that the memes were an integral part of the solicitation attempt and part of defendant’s business enterprise. Therefore, the court did not abuse its discretion in determining that the memes were not subject to Rule 404(b).

Defendant also argued that the probative value of the six memes admitted was substantially outweighed by the danger of unfair prejudice. Under Rule 403, evidence is excluded where its probative value is substantially outweighed by a danger of unfair prejudice.  A jury could conclude from the memes that defendant was branding himself as a pimp and attempting to use his Tagged profile to facilitate a pimping business, so the probative value of the memes was significant. The memes also supported the government’s charge that defendant’s interaction was not a casual or sporadic incident. The danger of unfair prejudice was relatively low in the context of the charges; any prejudice arose from the fact that they tended to show defendant was, aspired to be, or held himself out as, a pimp, which was probative of an element of the offense. The district court therefore acted within its discretion in holding that the danger of unfair prejudice did not substantially outweigh the memes’ probative value.

The convictions were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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