Second Circuit – RICO: United States v. Pierce

U.S. Court of Appeals for the Second Circuit – RICO – Rap Video and Tattoo Evidence – First Amendment

United States v. Pierce

13-3687-cr (L)

Judges Kearse, Wesley and Chin

Background: The defendants appealed from a judgment that convicted them for conspiracy, racketeering, murder, narcotics trafficking and firearms offenses. The defendants raised a number of issues, including that admissibility of a rap video and images of tattoos posted on a defendant’s Facebook page. The video and tattoo depict images that indicate the defendants’ desire to harm rival gang members. The defendants also raised an issue as to whether the rule of lenity applies to the sentences on multiple firearm convictions.

Ruling: The Second Circuit affirmed in all respects, except that it remanded for resentencing in accordance with the rule of lenity. The court found, inter alia, that the defendants’ First Amendment challenges are unavailing as the speech was not proscribed conduct, nor the basis for the prosecution. It was used to establish the existence of, and the defendants’ participation in, the alleged RICO enterprise.

Nola B. Heller, assistant United States attorney, for the appellee; Gwen M. Schoenfeld, Mitchell Dinnerstein and Ying Stafford for the defendants-appellants