The Second Circuit heard Sean Combs argue his Mann Act convictions are shielded by the First Amendment and that his sentence relied on acquitted conduct.
Sean Combs asked the U.S. Court of Appeals for the Second Circuit to vacate his Mann Act convictions, arguing that the sexual performances at the center of the government's case constituted protected expression under the First Amendment [1]. His counsel contended that the so-called "freak offs," elaborate recorded sexual encounters that prosecutors described as coerced, were instead a form of pornographic production in which Combs acted as both creator and consumer, not as a trafficker or buyer of sex [1]. The panel heard oral argument but has not issued a ruling.
The appeal arises from Combs' conviction in the Southern District of New York. His lead appellate counsel, Alexandra Shapiro, presented two distinct challenges before the Second Circuit panel [1]. The first targeted the district court's sentencing methodology, specifically whether acquitted conduct, criminal behavior a jury declined to find proven beyond a reasonable doubt, may nonetheless be used to enhance a defendant's federal Guidelines range [1]. That question, long contested in federal courts but unsettled since the Supreme Court's 2024 decision in Erlinger v. United States reopened related Sixth Amendment debates, carries weight well beyond Combs' individual sentence. The second challenge was the First Amendment argument described above. Combs remained detained at FCI Fort Dix, a federal correctional institution in New Jersey, throughout the proceedings [1].
The First Amendment theory is the more structurally novel of the two. Federal courts have generally held that the Mann Act targets the commercial exchange of sex acts, not the speech or expression surrounding them. Combs' brief reframes the conduct as performance and production, an argument that, if credited, would require courts to draw a constitutional line between coercive sex trafficking and the creation of sexual content, a line the statute was not drafted to accommodate. If the Second Circuit adopted that reasoning, even in narrow form, it could complicate Mann Act prosecutions in cases where defendants characterize organized sexual activity as expressive or creative work.
The acquitted-conduct sentencing question presents a separate but equally significant stakes. The Supreme Court has declined to categorically bar the practice, but lower courts have applied it inconsistently. A ruling by the Second Circuit limiting or conditioning its use would bind district courts across New York, Connecticut, and Vermont, and could accelerate pressure on the Supreme Court to resolve the circuit conflict definitively.
The Second Circuit has not announced a timeline for its decision. If it rules against Combs on both issues, his options narrow to en banc review or a certiorari petition to the Supreme Court.
—