When Miami hip-hop producer Harrison Garcia, aka the self-professed “CEO of Purple Drank,” needed to prove his street cred, he posted photos of himself with stacks of cash, a small arsenal of guns, and Styrofoam cups — presumably filled with the codeine-laced beverage “sizzurp” — to his nearly 40,000 followers on Instagram.
But the pictures came back to haunt Garcia, who also goes by the name “Cuban Harry,” in federal court Monday after prosecutors used them as evidence to convict him of five felonies, including armed drug trafficking. While that could land Garcia in prison for life, his defense attorney, Gustavo Lage, argued the 27-year-old only played the part of a criminal online to bolster his standing in the hip-hop world.
The “Instagram prosecution,” Lage told the court, didn’t reflect reality.
“My client is a 27-year-old schmuck,” Lage said during closing arguments, according to the Miami Herald. “He is a kid who talks big and is trying to be something he’s not.”
Garcia isn’t the first person in the rap game to cultivate a gangster image — one that may or may not be grounded in fact — that would eventually be used against him. Over the past decade, prosecutors have relied on these well-crafted, and sometimes fake, personas to land convictions, including one, largely based on rap lyrics, overturned by a state Supreme Court in 2014.
But social media posts, particularly on Instagram, open up a trove of evidence for prosecutors and a relatively new hazard for aspiring hip-hop personalities looking to burnish their images as gangsters or outlaws, even if they’re not.
“You’re entitled to post pictures of yourself in a pirate costume and not be prosecuted as a pirate,” said Jim Dempsey, executive director of the Berkley Center for Law and Technology. “But if you’re legitimately accused of being a pirate, the government is going to try to use [those photos] as evidence.”
“Lean” selling “lean”
When investigators charged Garcia in December with racketeering, grand theft, and illegal drug trafficking in connection with dozens of pharmacy heists, he already faced separate federal charges of using his Instagram account to sell “sizzurp,” also known as “purple drank” or “lean,” a beverage made from codeine and a sweet mixer, like soda or Jolly Ranchers. One of Garcia’s many aliases is, in fact, “Muhammad a Lean.”
During the trial, prosecutors introduced helicopter footage that captured informants buying drugs from Garcia, who then led them to a trap house where agents seized illegal guns and thousands of Xanax pills. The jury also heard that Garcia sold narcotics to Lil Wayne, infamous in his fondness for “lean,” and Chris Brown.
In addition to the hard evidence, prosecutors backed up their case with photos from Garcia’s Instagram, where he assumed the persona of a drug-dealing gangster: expensive cars, gold chains, and a tattoo of Richie Rich laundering money in a washing machine. One photo showed Garcia with a Fanta and a Styrofoam cup, presumably filled with sizzurp.
Some of that evidence, however, might be questionable, according to Colin Miller, an associate dean and professor at the University of South Carolina School of Law. For example, after showing the jury Instagram posts of Garcia’s guns during closing arguments Friday, Assistant U.S. Attorney Rilwan Adeduntan said: “It’s clear he has reason to protect himself — he’s dealing drugs.”
Miller sees nothing clear about it.
“These are just photographs of [Garcia] with weapons,” he said. “It’s not expressive. It’s not any type of conduct. It’s tough to see what this says about the case.”
Grounds for appeal
Character evidence, like Instagram posts and rap lyrics, can be admissible in court, but they have to serve a purpose, according to Dempsey — like showing knowledge of the drug trade, for example. To make those decisions, judges consider both the credibility of the evidence and its relevance to the case, which includes means, motive, and opportunity for the alleged crime.
On the other hand, judges also weigh whether the evidence would unfairly bias the jury. And sometimes they make the wrong call. Since 2007, at least eight people convicted using rap lyrics appealed the decision to include them as evidence in trials against them. Two won.
One of the successful appeals came from a New Jersey man named Vonte Skinner, charged with attempted murder in 2008. After the victim gave Skinner’s name, police searched his house and found notebooks full of violent rap lyrics, including ones that portrayed people “spittin’ blood clots up” after Skinner shot them.
Based partly on those lyrics, a jury convicted Skinner, although an appeals court later reversed the decision. When the case came before the New Jersey Supreme Court in 2014, the justices wrote:
One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story, ‘The Tell-Tale Heart,’ simply because of their respective artistic endeavor on those subjects. The defendant’s lyrics should receive no different treatment.
More recently, in 2016, Bobby Shmurda, the 20-year-old Brooklyn rapper behind the viral song and resulting dance craze “Shmoney Dance,” agreed to a plea deal he unsuccessfully later tried to retract. Shmurda, whose real name is Ackquille Pollard, is now serving seven years for conspiracy and weapons possession.
Police accused him of leading the violent street gang GS9, but Pollard said GS9 is just a hip-hop collective made up of his lifelong friends. Police also arrested and indicted fourteen other members of the alleged gang, including one sentenced to 117 years in prison. At a news conference announcing the indictments, an NYPD deputy chief said Shmurda’s lyrics were “almost like a real-life document of what they were doing on the street.”
“You’re focused on a particular type of evidence that would never be admissible under American law, and all of a sudden, they’re being used against predominantly African-American defendants,” Miller said.
Garcia’s sentencing is scheduled for June 3.