When does a meme's probative value outweigh its prejudicial effect? Alternatively titled: "Pimpin' Ain't Easy."

Melvin Roshard Alfred operated an account at Tagged.com, using the alias "King Maybach," on which he posted memes containing laudatory references to pimping and pimping culture and also contained graphic depictions suggesting dire consequences of engaging in prostitution without a pimp.  One of these memes depicts a woman’s beaten face with the words “The face she makes when she realizes she need Pimping!!!”  Another shows a man kicking a woman off a cliff, with the words “No love for renegades" and a website: “www.pimpthoughts.biz."

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Mr. Alfred also posted pictures to Tagged.com. One picture, for example, shows Mr. Alfred ironing money next to a gun; others portrayed material goods—earrings, shoes, and guns—all images that one might find relevant to pimping culture.

Mr. Alfred used his Tagged.com account to recruit women to engage in prostitution, typically by messaging them by saying "What's good wit cha ma?"

I know this because Special Agent Craig Tangeman posed as a 19-year-old woman named Nikki on Tagged.com and responded to Mr. Alfred's message.  A conversation ensued and Mr. Alfred encouraged “Nikki” to find a “trick”—a sex buyer—to obtain the funds to travel to Houston, Texas, where he lived. Agent Tangeman portrayed “Nikki” as concerned about engaging in prostitution and asked Mr. Alfred to explain its terminology. Mr. Alfred continued to push “Nikki” to engage in sex acts for money, explaining terms, pricing structure, and other elements of prostitution culture, and he gave her explicit guidance on the who, what, where, and how of meeting sex buyers.

A confidential source posing as “Nikki” ultimately called Mr. Alfred and told him she had engaged in a sex act for money and was able to purchase a bus ticket to Houston. Mr. Alfred agreed to meet “Nikki” at the bus station. Law enforcement was waiting at the bus station and arrested Mr. Alfred, who had a loaded gun with him as well as the cell phone he used to contact “Nikki.”

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Mr. Alfred was found guilty of coercion and enticement.  Naturally he appealed, and you can read the opinion here.  If you want the quick and dirty version, keep reading.

On appeal, Mr. Alfred argued that the judge should not have allowed the prosecution to show the memes to the jury for two reasons.  First, he argued that the memes were extrinsic evidence under Federal Rule of Evidence 404(b). “Evidence is considered ‘intrinsic’ when it is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury, and ‘extrinsic’ when it is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.” United States v. Kupfer, 797 F.3d 1233, 1238 (10th Cir. 2015).  The government argued that the memes were intrinsic because they were part of "Mr. Alfred's attempt to brand himself as a pimp [as] part of an ongoing business enterprise." Mr. Alfred countered that by arguing “he had posted 107 photos. Of these, the government only sought to introduce eight memes that related to pimping. The fact that less than eight percent of his photos were related to pimping undermines any notion that Mr. Alfred was finely curating his online presence in an attempt to cultivate his image as a pimp.”  A finely curated image of a pimp!

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The court agreed with the prosecution--the memes are intrinsic because as the district court put it, "they would be evidence of his business enterprise, namely, that he is using those memes as displaying what he is about. And under the government’s theory at least, what he is about is pimping."  I promise I did not make this up, the judge really wrote that.

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Second, Mr. Alfred argued that the memes should have been excluded under Federal Rule of Evidence 403. Under Federal Rule of Evidence 403, evidence is excluded where “its probative value is substantially outweighed by a danger of . . . unfair prejudice.”  “In engaging in the requisite balancing, courts give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” United States v. Henthorn, 864 F.3d 1241, 1256 (10th Cir. 2017).

The court ruled that 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 .... Furthermore, many of the memes specifically reference why a sex worker benefits from having a pimp. In short, they are probative of Mr. Alfred’s attempt to use his Tagged profile to facilitate a pimping business by demonstrating to his potential recruits on Tagged the benefits of having a pimp."  That's four uses of forms of the word "pimp" in one paragraph.  Written by the Court of Appeals for the Tenth Circuit.

The court ruled that the memes were properly put to the jury: "The government was required to prove beyond a reasonable doubt that Mr. Alfred’s involvement in pimping was not casual or sporadic .... 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."  I have never heard of casual or sporadic pimping.  It's a grind out there, and it ain't easy.

Mr. Alfred's pimpadocious social media presence was his downfall, and he brought it upon himself like the Odysseus of macks.  He clearly never listened to MF DOOM's "Rap Snitches Knishes" in which he says "Rap snitches, telling all their business/Sit in the court and be their own star witness."  Put another way, don't be surprised if you go to jail when you openly and notoriously brag about your crimes.  Mark alerted me to DOOM's death on New Year's Eve, observing "Very 2020."  I'm sad that he's gone, and the least I can do is work him into a post.  So check out the song and learn a thing or two.  And for the record, nothing that goes on here, as a meme or anything else, furthers my interest in pimping, be it active or casual, constant or sporadic.