The Second Circuit upheld the murder, racketeering, narcotics and firearms convictions of four members of the "Courtland Avenue Crew," a violent gang from the Bronx. One defendant's convictions relied partially on evidence gathered from social media, including a rap video and photos of tattoos taken from Facebook.
That defendant, Melvin Colon, was convicted in part for the execution of Delquan Alston, who he thought was an informant. On appeal, he argued that the Facebook evidence was procured through an unconstitutional law, the Stored Communications Act, and that its use in the trial violated his First Amendment rights. The Second Circuit wasn't convinced.
But I Thought That My Facebook Status Was Private!
The prosecution had presented a rap video made at the Bronx housing projects where the Courtland Avenue Crew operated. Colon made the video with one cooperating witness and other non-CAC gang members. In it, he raps "I'm OG shoot the Ruger / I'm a shooter." Also from Facebook, prosecutors submitted images of Colon's tattoos. One read "Young Gunnaz Killer," which they argued showed his desire to harm members of a rival gang.
Colon argued that his conviction violated his First Amendment rights, since it rested on expression which the Constitution protects. That claim, the Second Circuit found, was meritless. The speech was not the basis of the conviction -- it was no part of the crime -- it was simply evidence. Here, the lyrics and tattoos were introduced to show motive and intent. Their evidentiary value wasn't outweighed by any prejudice they might cause.
The Stored Communications Act
Colon wasn't entirely opposed to social media evidence however. He had attempted to subpoena information regarding Facebook posts by an informant. Facebook, which had provided evidence to the prosecution, squashed Colon's subpoena, arguing that Colon must subpoena the user directly. Under the Stored Communications Act, government entities may obtain information from service providers directly. Colon argued that the SCA was unconstitutional, as it prevents him from obtaining evidence provided to the prosecution.
The Second Circuit refused to delve into his objections, however, finding that the fact that he had failed to subpoena the informant directly and had actually received the information sought through a private investigator meant that there was no injury to support his objection to the statute.
The case is a reminder, a little too late for Colon and friends, that it's best not to advertise your crimes online, even if your status is seen by "friends of friends" (and other cooperating witnesses) only.