RICHMOND, Va. (CN) — A Fourth Circuit panel heard arguments Wednesday that a Muslim man was unfairly sentenced for drug distribution after his song lyrics about drugs were included in his trial.
In his brief, Kenneth Watkins says the jury lacked sufficient evidence to convict him and that the court erred in applying sentencing guidelines for the rarely encountered drug eutylone he was convicted of intending to distribute. He also argued it was a “harmful error” to include rap lyrics that he wrote and performed in the case, and that they prejudiced the jury.
During his trial, the jury was told that Watkins wrote and performed music videos where he said “I’m a doper for real,” and “Truckloads and bales, don’t even put ‘em on a scale.” Watkins was sentenced to 10 years.
In court Wednesday, Watkin’s lawyer Paul Kish argued the jury lacked the evidence to convict without the lyrics, calling the music videos an artistic expression by his client.
“These are publicly disseminated performances. This is not a one-on-one conversation between the accused person and some other person saying “I do murder” or “I do drugs,” Kish said.
Federal prosecutors argued they acted within their discretion in entering the ‘limited evidence’ of the lyrics, which were used as character testimony, and that the sentencing guidelines were reasonable.
Watkins argues the prosecution didn’t have any direct evidence tying him to drug dealing. He says he was affiliated with Steven Cloud, who had a drug-dealing business, and was heard on a wiretap speaking with women who moved drugs for Cloud.
Those women have said Watkins was not the person who gave them the drugs. One courier, Latecia Anderson, said that Watkins gave her $4,500 in cash, which she was arrested with, along with a Versace box filled with bags of eutylone.
“There’s no evidence that my client had any knowledge of what was inside the closed box,” Kish told the Fourth Circuit panel.
Amy Ray, an assistant U.S. attorney, called the inclusion of the lyrics harmless, and meant to help determine if he had any interest in drug trafficking.
The jury asked multiple questions about Cloud and the relationships between many of the people involved, Ray said, and didn’t lean on the lyrics to make their decision.
“The jury was focusing on the evidence that the United States presented in its case in chief, not these rap lyrics,” she told the panel. She said the evidence that was presented required the jury to make inferences, but that it was sufficient to convict.
The lyrics were introduced when Watkins’ wife Kizzy Childs was cross-examined about her husband’s character. Kish said the prosecution's actions were to open a door to include otherwise inadmissible evidence.
“A wife's testimony about the character of her husband is unsubstantiated?” U.S. Circuit Judge Julius Richardson, a Donald Trump nominee, asked.
“What is unsubstantiated is the idea that a person who says things like this in a rap video is somehow a bad character,” Kish replied.
Ray noted Childs also spoke about Watkins’ devotion to his family, his religion and his word, and that he doesn’t do drugs.
Watkins also challenged the guidelines used to sentence him. Eutylone is a rarely encountered substance and not on the table used by judges to sentence in drug convictions, so the federal judge used a drug conversion table and sentenced him based on the weight of the drugs, not the drugs themselves.
Watkins’ recommended sentence was based on the weight of the seized drugs and the estimated weight of another box that was moved but not confirmed to contain drugs.
Kish argued that if the lower court had used a different conversion table, the recommended sentence would have been much lower, closer to a year and a half. If the court had only included seized drugs in their sentencing, Watkins’ 10-year sentence would have been outside recommended guidelines.
Watkins has been denied a request for a new trial by the lower court.
“We're glad that we had the opportunity to present our argument. We look forward to the court's decision and anticipate getting a good results for our client,” said Kish after Wednesday's proceedings.
Attorneys for the United States did not reply to a request for comment. U.S. Circuit Judge Robert King, a Bill Clinton nominee, and U.S. District Judge Gina Groh. a Barack Obama appointee sitting by designation from the Northern District of West Virginia, rounded out the panel.
Follow @SKHaulenbeek
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