Matthew Pociask

Writing Project #4
Dr. Christopher Glomski - ENG 161

The Complaint
On November 18th, 2014 the San Diego County District Attorneys
office filed a nine-count criminal complaint against Hip-Hop artist Brandon
Tiny Doo Duncan and 14 other co-defendants. The complaint consisted of
6 counts of Conspiracy to Commit Premeditated Attempted Murder and
Shooting at Inhabited Occupied Structure, 2 counts of Conspiracy to Commit
Premeditated Attempted Murder and Shooting at Inhabited Occupied Vehicle,
and 1 count of Conspiracy to Commit Attempted Murder. No one named in
the complaint was charged with being directly responsible for the shootings.
If convicted, Duncan faced a sentence ranging from 25 years to life in prison.
Prosecutors did not claim Duncan had any direct involvement in or prior
knowledge of the crimes outlined in the criminal complaint. Instead, the
District Attorney contended that Duncans lyrics, which reference the
activities of the gang thought to be responsible for the crimes, and his social
media postings were probative of the rappers involvement in a criminal
conspiracy under California Penal Code 182.5. On March 16th, 2015 a
defense motion to dismiss the charges was granted after San Diego Superior
Court Judge Louis Hanoian ruled that a conspiracy charge cannot attach to a
crime that doesnt have a defendant (CITE HERE). By dismissing the case
on these grounds, Hanoian avoided addressing the more (alarming question

of the)interplay between Penal Code 182.5 and constitutionally protected

speecha move that ostensibly allows the District Attorney to file new
charges against Duncan if prosecutors are able to shore up the deficiencies
in their case. Though the charges were dropped, the fact that Duncan spent
8 months in jail awaiting trial and is not immune from future prosecution
raises concerns over the impact of California Penal Code 182.5 on civil
liberties. (over the ability to use PC 182.5 to limit civil liberties). Critics
viewed the trial against Duncan as a politically motivated attack on
protected speech, whereas prosecutors defined the case as another chapter
of legal maneuverings between a violent street gang and a city plagued by
its criminal activity. The origins of the District Attorneys conspiracy strategy
against Duncan lie in the citys history of combating the gang with which he
is associated, while an in depth look at California Penal Code 182.5 and the
States strategy in the case reveals the relationship between the conspiracy
charge and Duncans music. Regardless of the intention of the District
Attorney in pursuing Duncan, any criminal charge which actually or
perceptibly proscribes protected speech must hold up to the utmost level of
constitutional scrutiny. Without this high threshold, there exists a risk of selfcensor by the public in an effort to avoid the heavy hand of the justice
system, resulting in a chilling effect on civil liberties. Though the case
against Duncan is inactive, an analysis of the constitutionality of the charges
against him will be shown by evaluating the merits of the case against

precedents set by the US Supreme Court, and assessing questions of

statutory interpretation regarding Penal Code 182.5.
Background
Through his lyrics, social media postings, and personal statements,
Brandon Tiny Doo Duncan is known to be associated with a particularly
violent street gang known as the Lincoln Park Bloods. Operating out of the
southeast side of San Diego, California, the gang employs kidnapping,
beatings, and drive-by shootings to further their criminal enterprise. The
Lincoln Park Bloods are identifiable by several unique characteristics. First,
affiliates wear green clothing to exhibit their membership. Red is also used
as a color signifying allegiance to the Bloods, an umbrella organization to the
Lincoln Park Bloods. As is true with other gangs, the Lincoln Park Bloods
employ hand signs and written symbology to further brand their
organization. In reference to the gangs trademark color, gang members use
the code word green light to order a hit or physical beating on an
individual, and the area surrounding the apartment complex from which they
operate is referred to by the code name The Dip. The San Diego Police
Department assigned high priority to the dismantling of the Lincoln Park
Bloods after a member shot and killed San Diego Police Officer Jerry L.
Hartless. In 1988, Hartless and his partner confronted several gang
members in the wake of a nearby shooting. The group disbursed and the
two officers pursued separate suspects on foot. While separated from him
partner, Hartless was shot in the head at close range. Hours later, while

conducting a raid on a Lincoln Park Blood safe house, police arrested Lincoln
Park Blood member Stacy Butler in connection with the shooting. At the time
of arrest, Butler was wearing a jacket which matched the description of
Hartless killer, and the murder weapon was found in the bushes behind the
house. In 1991, prosecutors with San Diego District Attorneys office failed to
secure a conviction for Butler when they presented a case based largely on
circumstantial evidence. When the trial of Hartless perceived killer ended in
a hung jury, prosecutors were left to devise a new approach to bring the
gang to justice. The second trial of Stacy Butler marked the first time San
Diego District Attorney utilized a conspiracy strategy to combat the Lincoln
Park Bloods. With this approach, prosecutors were alleviated from the
burden of proving a specific individual fired the fatal shots. To secure a
conviction for a conspiracy charge, they had to only show that Butler and the
co-defendants acted in concert in the killing of Officer Hartless. The jury
handed down a guilty verdict for 4 of the 6 co-defendants, to include Stacy
Butler. The case was a victory for the San Diego District Attorneys office,
and offered a blueprint on how to penetrate the tight-knit street gang in
future prosecutions.
The San Diego District Attorneys Office developed another recurring
tactic in combating the gang while preparing their case against Brandon
Brice. Brandon Tiny Mad Hatter Brice, a Lincoln Park Blood affiliated hiphop artist was the prime suspect in the September 2001 killing of rival gang
member Anthony Newsom. Detectives connected Brice with the killing after

they matched audio from his rap album with a previously unidentified voice
discussing the murder on a wire-tapped phone conversation. When
detectives listened to Brices album in full, they found lyrics which ostensibly
claimed responsibility for Newsoms murder. With the use wire taps and with
his lyrics as key evidence, Brice was convicted of Newsoms murder in 2004
and sentenced to 28 years to life in prison. The Tiny Mad Hatter is one of
many hip-hop acts associated with the gang. Charles Mitchy Slick Mitchell,
a member of the Lincoln Park Bloods inner circle, was the recipient of San
Diego Music Awards Best Hip-Hop Artist and Best Hip-Hop Album. Mitchells
songs are littered with overt references to his involvement in the gang.
While discussing Mitchy Slicks lyrics, San Diego District Attorney Ken
Freshwater claims the meaning of the musicis in furtherance of the gang.
In September 2014, Mitchell was arrested on multiple felony accounts
ranging from criminal involvement in a street gang to pimping and
kidnapping. Several years earlier, Brandon Tiny Doo Duncan was charged
with a similar crime. Concluding a lengthy appeal process, the charges were
dropped against Duncan not because he was found factually innocent, but on
account of the San Diego Superior Court found that the trial court did not
hold the proper jurisdiction in the case. With legal maneuverings thwarting
the citys attempts at dismantling the gang, the San Diego District Attorneys
office was left to devise new strategies to prosecute its members. Criminal
conspiracy charges would XX the XXX of the next round of prosecutions
against the gang.

Conspiracy statutes in the American penal code exist to protect

society from the dangers of concerted criminal activity. (CITE consp pdf
quote/w in quote) Advocates of conspiracy laws opine that criminals
working in partnership pose a greater threat to society than those working
alone, and additional punishment must be available to combat and prevent
such activity. A defendant is guilty of criminal conspiracy if he forms an
agreement with one or more persons for the purpose of committing a crime
(CITE consp pdf 3). By focusing on the agreement as the criminal act,
conspiracy statutes offer two benefits of societal import. The first is that
conspiracy crimes may be prosecuted inchoate, which means charges may
be brought against the conspirators in the early stages of the criminal
conduct, prior to the infliction of actual harm upon a victim. The second is
that when a criminal organization commits a crime, all members of the
organization are guilty of conspiracy to commit that crime. This is especially
useful when targeting the leadership of a criminal enterprise as they are
often deeply insulated from the criminal operations of the organization. It is
this second attribute of conspiracy law which led famed federal circuit judge
Learned Hand to deem conspiracy the darling of the modern prosecutors
nursery. (CITE)
Conspiracy law is not without its critics. Opponents argue conspiracy
prosecutions can have the effect of shifting the burden of proof from the
prosecution to the defendantan alarming departure from western
jurisprudence. A recent example of this can be found in the 2013 Supreme

Court case Smith v United States. Calvin Smith and his associate John
Raynor were charged with criminal conspiracy for their participation in a drug
distribution ring. During their trial in 2000, Smith and Raynor argued they
had quit the organization prior to 1995, and were precluded from prosecution
in accordance with a 5-year statute of limitations for drug trafficking. In a
ruling later upheld by the Supreme Court in 2013, the trial judge declared
that once engaged in a conspiracy, the defendant bears the burden of proof
in showing withdrawal from the agreement. Affirmatively proving the
termination of a criminal agreement proved impossible for the defendants
and the pair were sentenced to a lengthy prison term.
Historically, prosecutors have sometimes used conspiracy statues to
make political statements. Under climate of social liberation in the 1970s, a
pornographic film named Deep Throat began to gain popularity across the
country with a relatively mainstream audience. Having grossed over $60
million, the film was shown in places such as the Harvard University movie
theater as well as aboard US military vessels. Politicians in conservative
areas of the country objected to the rise of Deep Throat on the grounds that
the film violated federal obscenity laws and pressured prosecutors in the
Bible Belt to devise a strategy to punish those involved. In order to
maximize chances of a sympathetic judge and jury in the face of growing
popular support for such films, prosecutors filed their criminal complaint in
Memphis, Tennessee. Although the film had never been sold, distributed, or
shown in Memphis, federal prosecutors in the conservative stronghold were

granted jurisdiction to file charges by virtue of the Interstate Commerce

Clause of the US Constitution which allows for any federal court in the
country to hear the case provided the film crossed at least one state
boundary. Legal maneuvering by the prosecution to increase the political
capital of the case did not stop at jurisdiction. Rather than pursuing the
company responsible for distributing the film across state lines, prosecutors
sought a prison sentence for an actor in the film, Herbert Harry Reams
Streicker. By securing a conviction against Streicker, prosecutors believed
they could deter would-be actors from participating in pornographic films,
thereby curtailing the industry. Prosecutors elected to accomplish this via a
charge of Conspiracy to XXXXX, which carried a maximum sentence of 5
years. For his part, Striecker had very limited involvement in the production
of Deep Throat. Originally hired as a lighting technician for the film, Streicker
was asked to perform in a scene in lieu of an actor who was absent for the
days shoot. After the shooting of the film concluded, Streicker parted ways
with the filmmakers earning a mere $100 in compensation. Streicker had no
involvement in post-production or distribution of the film, nor did he maintain
contact with the filmmakers after his scene was concluded. Streicker was
not entitled to any royalties or residuals from the future success of the film,
nor did he even have a hand in adopting his iconic pseudonym. According to
prosecutors however, Streicker was liable for any criminal act carried out by
the production company in distribution of Deep Throatin perpetuity. The

jury concurred with the US Attorney trying the case, and the judge
nicknamed Mr. Cleanhanded Streicker the maximum sentence.1
As stated earlier, Duncans has publicly and unabashedly declared
allegiance to the Lincoln Park Bloods, a gang responsible for the murder of
rival gang members, police, and innocent bystanders. Long upheld by courts
at all levels of the justice system, conspiracy law provides prosecutors a line
of attack against all persons who make the activity of a criminal enterprise
possible. If it could be proven than Duncan contributed to the operations of
the gang in general then it would be both legal for the San Diego District
Attorney to pursue criminal charges against him, and beneficial for society as
a whole to be alleviated of his activities. The controversy over the Duncan
case is centered on how the District Attorneys office structured the case
against the rapper and his co-conspirators. At the heart of the strategy is
California Penal Code 182.5.
The Statute
California Penal Code 182.5 reads:
Notwithstanding subdivisions (a) or (b) of Section 182, any
person who actively participates in any criminal street gang, as
defined in subdivision (f) of Section 186.22, with knowledge that
its members engage in or have engaged in a pattern of criminal
1 Streickers conviction was later overturned thanks to a fortuitous decision by the US
Supreme Court in a largely unrelated case. The case, Marks v United States, clarified the
appropriate judicial rubric to be used when evaluating obscene material according to the
year in which the material was published.

gang activity, as defined in subdivision (e) of Section 186.22, and

who willfully promotes, furthers, assists, or benefits from any
felonious criminal conduct by members of that gang is guilty of
conspiracy to commit that felony and may be punished as
specified in subdivision (a) of Section 182.

As component of Proposition 21, California Penal Code 182.5 was

passed by referendum in 2000 response to increased gang activity across
the state. The law, enacted directly by the voters of California, expanded the
authority of prosecutors to bring conspiracy cases against gang members in
two ways. First, 182.5 eliminates the requirement that the accused commit
an overt act in furtherance of a gang conspiracy. Thought in XXX v XXXX
the Supreme Court ruled overt act clauses are not a constitutional
requirement in a conspiracy case, many statutes include such requirements
as a way to separate criminals from those with mere evil thoughts. (CITE
Johnson case). Second, prior to the passage of Proposition 21, the California
penal code classified a criminal participant in a street gang as one who
promotes, furthers, or assists in felonious conduct. 182.5 expanded this
definition to include persons who merely benefit from gang activity, further
reducing the threshold of legal participation in a street gang.
To secure a conviction against Duncan under 182.5, prosecutors
needed to prove three elements of the crime: (1) Duncans active
participation in a street gang, (2) knowledge of the gangs pattern of criminal
activity, and (3) willful promotion, furtherance, assistance, or benefit from

the gangs criminal conduct. Among the evidence proffered to demonstrate

these elements included social media content and rap lyrics generated by
Duncan. Because the Duncan case was dismissed early in its proceedings,
the District Attorneys discovery file was never made public. For the sake of
analysis, evidence collected independently from public sources is shown here
in order to demonstrate a possible strategy of prosecution under 182.5.
According to the jury instructions for considering a verdict on a 182.5
offense, when proving active participation in a street gang, prosecutors do
not have to prove that the defendant devoted all or a substantial part of
(his/her) time or efforts to the gang, or that (he/she) was an actual member
of the gang. Evidence showing the defendants mere association with the
gang along with some level of involvement in the enterprise is sufficient to
prove the first element of the crime. While the police investigation of
Duncans involvement with the Lincoln Park Bloods is not a matter of public
record, the rappers social media postings seem to show evidence of his
participation in the gang. In the late morning of July 22, 2011 using the
handle iamtinydoo, Duncan made several posts on the social media site
Twitter referring to his part in the execution of a green light against fellow
rapper Pay Da Boy. Such postings were likely the type of social media
content that prosecutors planned to introduce when showing Duncans active
participation in the gang.
The next element of the crime the prosecution would need to show is
Duncans knowledge of the gangs pattern of criminal activity. This is likely

where the prosecution intended to introduce Duncans lyrics as evidence. In

preliminary hearing, Deputy District Attorney Anthony Campagna referenced
Duncans album No Safety when discussing the charges
(http://www.latimes.com/local/lanow/la-me-ln-rap-singer-20141120story.html). Though the lyrics of the album frequently reference crimes
enumerated in Penal Code 186.22 Section E, no lyrics explicitly credit the
Lincoln Park Bloods as perpetrating those crimes. According to a widelyadopted precedent set by the New Jersey Supreme Court, rap lyrics should
only be admitted as evidence in a trial if they contain a strong nexus to the
crimes committed. Absent this strong nexus, it is questionable at best if
the trial judge would have allowed lyrics from No Safety to be introduced
as evidence of Duncans knowledge of the gangs pattern of criminal activity.
That finding, however, would not preclude the lyrics from being admitted on
other grounds, and the lyrics may have found their way into evidence as
probative of the prosecutions theory that Duncan benefitted from the gangs
activity.
Put something here from ACLU Amicus about having to use the Benefit
not promotion due to appeal court ruling on promo-further = aid abetting.
Fail to make prima facie which leads to motion for summary judgement for
the defense. Ultimately, the success of the case would depend on whether
or not Duncans record sales were positively correlated with the increase in
the Lincoln Park Bloods criminal activity, and if the District Attorney could
show a causal relationship between the two. This would demonstrate

Duncans benefit from the gangs activity and satisfy the third requirement of
a 182.5 conspiracy. As the financial records of Duncans recording label
Wrong Kind Records would only be available by subpoena, no effort is
made to substantiate this here. In order to allow for an analysis of the
constitutionality of PC 182.5 as applied in this case, the assumption is made
that the prosecution would be able to sufficiently convince a jury beyond a
reasonable doubt that Duncans record sales did in fact benefit from the
criminal activity of the gang. With all elements of the 182.5 conspiracy
satisfied theoretically, the statute can now be tested against precedents set
by the Supreme Court.
182.5 v U.S. Supreme Court
California Penal Code 182.5 is susceptible to invalidation by the U.S.
Supreme Court if it can be proved that the statute is unconstitutional on its
face, or as-applied. A facial challenge will succeed if it is shown that the
statute is unconstitutional under any application of law. When considering
whether a law indeed has constitutional applications, justices of the Supreme
Court rely on several tests which direct their findings. One such category of
tests concerns the concept of statutory interpretation. Clear and
unambiguous verbiage in criminal law is a corner-stone of American
jurisprudence. Citizens are guaranteed the opportunity to know and
understand the laws which govern their behavior by the due-process clauses
of the 5th and 14th Amendment
(https://www.law.cornell.edu/wex/vagueness_doctrine), therefore, a statute

may be found unconstitutional if its wording fails to sufficiently notify the

public what behavior its aims to criminalize. Among the tests of statutory
interpretation lies the vagueness doctrine. A statute is unconstitutionally
vague if it fails to provide fair notice of what is punishable and what is not
or allows for the arbitrary enforcement of the law[].(cornell again)
Considering the sizable population of California-based rappers with alleged
gang ties who pen lyrics similar to those found on No Safety, the
prosecution of Duncan at the exclusion of all others is suggestive of arbitrary
enforcement of 182.5 in this case. A specific excerpt from 182.5, which may
classify it as fatally vague can be found in the third clause, which describes
a personwho willfully promotes, furthers, assists, or benefits from any
felonious criminal conduct by members of that gang. By the SeriesQualifier (Reading Law: The Interpretation of Legal Texts-scalia) canon of
statutory interpretation, when a modifier precedes a list of nouns, that
modifier will apply to that entire list. When applying this rule to the third
clause of 182.5, the statute asserts a person is guilty of benefiting from a
gang conspiracy only if the benefit is willful. But it is not clear how a willful
beneficiary is distinguished from an unwitting one. The fact that the District
Attorneys case against Duncan hinges on this very word of the statute
highlights the ambiguity of this clause, and by strict application of the laws
of statutory interpretation, may render 182.5 unconstitutionally vague.
Closely related to vagueness doctrine is the over-breadth doctrine. A
statute is overbroad when, in an attempt to proscribe unprotected speech, it

allows for the proscription of protected speech as well (Cite this. It might be
plagiarized from wiki page). Implementation of the over-breadth doctrine
constitutes a facial attack as opposed to an as-applied attack because laws
that could be used to proscribe protected speech tend to invoke self-censure
by the public in an attempt to avoid the grey area of the law. This
phenomena is known as a Chilling Effect on free speech and laws which
interact with protected speech in anyway are carefully written and
interpreted to avoid this consequence. The Supreme Court recognizes three
categories of unprotected speech: obscenity, child pornography, and
fighting words. (cite this from cong report). In the 2000 ruling in US v
Stevens, the Court expressed these categories of unprotected speech are
unlikely to be expanded upon or added to. In relation to the merits of the
Duncan case, an argument can be made that 182.5 is criminalizing speech
which promotes or benefits from gang activity. While such expression may
be deemed reprehensible, it is nonetheless protected as a 1st Amendment
right. This in turn produces the violation that the over-breadth doctrine is
designed to prevent, and 182.5 is vulnerable to a facial attack as a result.
In its XXX year tenure, the Roberts Court has been hesitant to declare
statutes facially unconstitutional, and has instead found ways to salvage
laws by establishing narrowly-scoped precedents which shape the application
of the challenged law. For this reason, any challenge of the Duncan case at
the Supreme Court would be remiss if it did not attack the law as-applied as
well. An as-applied attack against a statute will succeed if it is shown that

the application of the law in a particular case violates the defendants rights
or is otherwise unconstitutional. By criminalizing the benefit that one may
derive from protected speech, one can argue that the speech itself is
criminalized or at least restricted as a result. The Court illustrated this
concept in its unanimous decision in Simon & Schuster v New York Criminal
Victims Board in 1991. In Simon, the Court struck down New Yorks Son of
Sam Law which was enacted to prevent criminals from profiting from their
crimes through the sales of book and movie rights. The Court ruled that the
law singles out speech on a particular subject for a financial burden that it
places on no other speech andis presumptively inconsistent with the [First]
Amendment (CITE). The merits of the Simon case are similar in nature to
the prosecutors use of the benefit clause against Duncan, and the Court
would likely hold that the precedent set in Simon applies to 182.5 as well.
In an Amicus Curiae brief filed with the California Superior court, the
American Civil Liberties Union argued the unconstitutionality of 182.5 asapplied with a different strategy. The ACLU relied on The Absurd Result
principal of statutory interpretation which requires laws to be interpreted in a
manner as to avoid an absurd or unconstitutional result. (CITE Limits of
LIteralism) (CITE ACLU) The ACLU claims that the prosecutions
interpretation of 182.5 is unconstitutional because it effectively criminalizes
free speech in the form of gangster rapa mode of speech explicitly
identified as protected when a US District Court ruled that "First Amendment
protection extends to rap music and that the First Amendment protection is

not weakened because the music takes on an unpopular or even dangerous

viewpoint. (CITE TORRIES v. HEBERT)
Conclusion
The city of San Diego, California is afflicted by a scourge of criminal gangs
operating within its streets. The passage of Proposition 21 by referendum is
a testament to the citizens desire to reign in the perpetrators of these
crimes. As is the duty of the State, the San Diego District Attorneys office is
engaged in a continuous legal battle against an increasingly sophisticated
and violent criminal street gang. In 2014, the US Supreme Court over-turned
the conviction of Lincoln Park Blood member David Leon Riley in a landmark
4th Amendment ruling. Riley had recently participated in a drive-by shooting
on the streets of San Diego AGAINST? KILLING? SOMETHING, QUALIFTY THIS.
During the arrest, detectives searched his phone and found evidence linking
him to the Lincoln Park Bloods which was later used against him at trial.
Although detectives are legally permitted to search a suspect upon arrest,
the Supreme Court ruled that, because a cell phone holds a vast amount of
personal information, the device falls outside of the scope of a search
incident to arrest, or SITA search, and require a warrant to search(CITE). In
the face of such vigorous defense by the attorneys representing the Lincoln
Park Bloods, the District Attorneys office has been forced to prosecute the
gang in increasingly creative ways. The case against Brandon Tiny Doo
Duncan is a result of this on-going battle against the Lincoln Park Bloods.
The prosecutions theory in the case however, encroaches on one of the

most highly scrutinized topics of criminal lawrestriction of free speech.

[Prosecutions under Penal Code 182.5 similar in nature to the charges
against Duncan would very likely fail to pass Constitutional muster if heard
by the United States Supreme Court.]REPLACE THIS WITH THESIS. The Court
holds a courageous tradition of invalidating any law which chips away at free
speech, not matter how depraved or reprehensible.2 Despite the grounds
Judge Hanoin used to dismiss the charges in the Duncan case, the attention
garnered by the case will likely prevent similar prosecutions of 182.5 in the
future.

Although the prosecution's theory in the case against Duncan would likely
fail to pass constitutional muster under the 1st Amendment, their strategy to
use lyrics as evidence of a gang conspiracey was an effort in earnest to
combat a voilent street gang, not a politically motivated attack on a ??
controversial?? counter-culture.

2 In United States v Stevens, the Court ruled in a near-unanimous decision that a statute
which prohibited videos showing actual dog fights was an unconstitutional abridgement of
1st Amendment privilege.