Two things are clear: Brandon Duncan raps under the name "Tiny Doo," and he's being prosecuted for participation in the Lincoln Park street gang in San Diego.

After that, things get a little cloudy. But it appears that the San Diego County District Attorney's Office is prosecuting Duncan on the theory that a gang's activity made his rap music more popular, and that he therefore benefitted from gang activity. That poses some First Amendment problems.

You may have seen news about Tiny Doo — music sites are full of stories about how he's facing life in prison on the theory that his music benefited from gang activities. Those stories all seem to be sourced from frustratingly vague local coverage. This quote is fairly typical:

Last week, Duncan and some of the 14 other gang members facing attempted murder charges in the case were in court for a preliminary hearing. They are charged in a gang conspiracy involving nine local shootings since April 2013, as a judge mulled a possible trial. Prosecutors are calling upon a state law put in place by voters in 2000 that has not been used until now. It allows for the prosecution of gang members if they benefit from crimes committed by other gang members. Though Duncan hasn't been tied to the shootings, prosecutors argued that he benefited from the shootings because his gang gained in status, allowing him to sell more albums.

When I got a request to do a TV interview about the case, I decided to find out more. I reached out to the DA's Public Affairs office to get a copy of the criminal complaint, talked to some people who observed the preliminary hearing, and researched the statute under which Duncan is charged. Here's what I found out.

The Charges

Brandon Duncan is one of fifteen defendants charged in a criminal complaint in San Diego County Superior Court. The complaint — which I've uploaded here — addresses a series of gang-related shootings in 2013.

Some of the defendants are charged with conspiracy to commit murder. Duncan isn't. He's charged with multiple violations of California Penal Code 182.5. The relevant part of that says:

. . .any person who actively participates in any criminal street gang [as defined by statute] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity [as defined by statute] 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 . . . .

The charges against Duncan look like this one, Count Two of the complaint:

On or about May 28, 2013, JUSTIN ANTONIO ANDERSON, ALVIN RANDOLPH BANKS, DARRYL LAWRENCE CHARLES JR., DESMOND RAYSHAWN CRISP, BRANDON DUNCAN, GLENN ROY GRAY, AARON WAYNE HARVEY, JAWAUN DESHAY JONES, CEDRIC CHARLES JORDAN, STANLEY BERNARD KING JR., FRANKLIN LAMBERTH III, ANTHONY ROBINSON, TEVONTE STRIPLING, and DEON WINTERS committed the crime of Criminal Street Gang Conspiracy, in violation of Penal Code Section 182.5, a felony, by unlawfully and actively participating in a criminal street gang with knowledge that its members engage in and have engaged in a pattern of criminal gang activity and did willfully promote, further, assist and benefit from felonious criminal conduct by members of that gang, to wit: the crimes of Premeditated Attempted Murder and Shooting at Inhabited Occupied Structure, in violation of Penal Code sections 664/187/189 and 246, committed on or about May 28, 2013, in violation of PENAL CODE SECTION 182.5.

So what does this mean? Well, by its terms, Penal Code Section 182.5 makes it felony to (1) actively participate in a criminal street gang (2) knowing that the gang has engaged in criminal activity and (3) willfully promoting, furthering, assisting, or benefiting from that activity.

Last year the California Supreme Court pointed out how different that is from previously existing conspiracy statutes:

[182.5] brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense. This constitutes a substantial expansion of a traditional conspiracy application. The “one who benefits” provision recognizes that gang activities both individually and collectively endanger the public and contribute to the perpetuation of the gang members’ continued association for criminal purposes. Due to the organized nature of gangs, active gang participants may benefit from crimes committed by other gang members. When such benefits are proven along with the other elements of the statute, section 182.5 permits those benefitting gang participants to be convicted of conspiracy to commit the specific offense from which they benefitted.

So What's the DA's Theory in This Case?

It's undisputed that Duncan has no criminal record. The DA hasn't asserted that he had anything to do with the shootings charged in the complaint, or that he knew they would happen. He's not accused of any specific acts, only the crime of conspiring to be a gang member under Section 182.5.

Based on what?

There's nothing public in writing spelling out the DA's theory of their case. But I talked to a source about what happened at the preliminary hearing, at which the DA had to put on evidence showing probable cause supporting the charges.

Here's what I understand:

The DA's theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an "intangible benefit" — their words — by his music becoming more credible or popular. The DA did not present any evidence that the gang's crimes had any impact on album sales.

The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

The DA's theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member "willfully promotes, furthers, assists, or benefits from" the criminal activity.

In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.

Now, the DA hasn't committed to a theory in writing, and the burden at a prelim is very low. They may yet focus their theory another way before trial. But if that's their theory, it poses very significant First Amendment problems. The government's argument doesn't fit into familiar and easy categories: they aren't saying that the rap music incited violence (which would be easy to analyze under the Brandenburg standard), or that it contained a true threat to someone, or that it's obscene, and they aren't trying to use it to prove Duncan's intent in connection with a substantive crime (a popular topic recently). It's not quite like the cases analyzing "Son of Sam laws" that try to prevent criminals from profiting by telling their story, as those laws are explicitly directed at speech and this law is facially neutral but being used against speech.

Arguably the closest comparison is to cases dealing with material-assistance-to-terrorist-organization prosecutions like U.S. v. Mehanna, which I wrote about. Eugene Volokh has written about the scope of the First Amendment in the context of those prosecutions; I'd be very interested to hear his view on this.

Can the government make it a crime to participate in a criminal organization as its poet or songwriter or biographer? That's core expression. Could the government, for instance, charge the writers of narcocorridos on the theory that they benefit from the deeds of the cartels they talk about? Could the government punish someone for hanging out with a marijuana grower and writing articles glamorizing him? I have grave doubts. This is a copout, I know, but I'm going to think and research about it some more.

For now, I know enough to say that the DA's theory seems constitutionally suspect.

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