State high court says being a ‘cheerleader’ on social media not enough to support gang conspiracy verdict

More than a decade ago, the rivalry between two San Diego street gangs broke out into a simmering street-level war that lasted nearly three years and included at least four murders and a half-dozen attempted murders.

In May 2014 the District Attorney’s Office charged nearly two dozen people in a sweeping conspiracy case alleging a broad agreement among the gang members to kill their rivals, which resulted in numerous convictions and lengthy prison sentences.

The case against one of the gang members, Nicholas Hoskins, relied heavily on his social media postings that taunted his rivals and even celebrated some of the attacks. But earlier this month, in a ruling that could have broad applications for how prosecutors use social media to support conspiracy cases and gang prosecutions, the state Supreme Court ruled that was not enough to convict him.

In a unanimous ruling, the court said there was no evidence that showed Hoskins had committed any specific violent act, or that he had helped or assisted other gang members in any of the murders or attempted murders. Facebook posts or photographs promoting the gang may be inflammatory, but they were not good enough evidence.

“A cheerleader, no matter how enthusiastic, is not a coconspirator unless the prosecution can prove the cheering was intended to play some role in achieving the object offense,” Associate Justice Leondra Kruger wrote.

Steve Walker, communications director for District Attorney Summer Stephan, said the case will not be retried.

Walker noted in a statement that only the charge against Hoskins was overturned. “We are grateful that verdicts against the two other defendants, who were charged with conspiracy to commit murder have been upheld on appeal, allowing the victims in this case to take solace that there is a measure of justice and accountability for the loss of life and other harm done,” he wrote.

Hoskins has been in prison for eight years since the conviction and will probably be released in the coming weeks, said Nancy Olsen, his lawyer who successfully argued the case at the Supreme Court.

The case against Hoskins rested on several elements — his membership in the 5/9 Brims gang, previous police encounters in which he was found in possession of a gun, and his longtime association with another gang member who was convicted of an August 2013 shooting. However, Olsen said that the bulk of the evidence was the numerous social media posts Hoskins made over many months.

In August 2020 the San Diego-based 4th District Court of Appeal upheld the bulk of the convictions against Hoskins and two other men who had also appealed. There were two different types of conspiracy crime in the case against the men.

One was a gang conspiracy charge, which essentially says active gang members can be held responsible for crimes committed by other members of the gang, if they had general knowledge of the gang’s criminal activities and promoted or benefited from any crime committed by the gang.

The second was the more traditional criminal conspiracy law, which says two or more people must enter into an agreement to commit a crime, and one of them takes an action that furthers the crime.

The appeals court struck the gang conspiracy conviction, saying there was no evidence showing he benefited or promoted a specific crime committed by the gang. But it let stand the broader conspiracy charge to murder rival gang members. That’s what Hoskins’ lawyer then appealed to the Supreme Court.

In her ruling, Kruger said that while prosecutors contended the posting opened a window into Hoskin’s mind, social media does not work that way.

“Social media is not a bedside diary; it is a platform for expression aimed at a particular audience,” she wrote. It can have “an element of performance or bravado,” too, and juries have to determine whether a post is empty bragging or not.

She also wrote that years ago the U.S. Supreme Court ruled “the First Amendment forbids punishing a person merely for associating with others — even as part of a group premised on a violent aim.”

The Hoskins case echoes an earlier San Diego case against Aaron Harvey and Brandon Duncan, a rapper also known as Tiny Doo. In 2014, just a month after the case involving Hoskins was filed, the pair along with 14 others were also charged with gang conspiracy, with prosecutors pointing to Duncan’s rap lyrics and Harvey’s Facebook posts as proof of their involvement.

The case attracted national attention because of its First Amendment implications, and in 2015 charges against the two and several others were dismissed by judges.

David Loy, the legal director for the First Amendment Coalition, said the Hoskins case affirmed the constitutional principle that someone can’t be convicted under a guilt by association standard. And he said the court laid down an important marker in the use of social media.

“The court said not everything posted on social media can be taken seriously,” he said. “This was true long before social media. People brag and posture and boast in a way that can’t be taken as literal truth.”

Loy noted that Kruger did not say that social media posts can’t ever be used in a trial, “but that they should be viewed with skepticism.”


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