In armed bank robbery and unlawful firearm violations trial, trial court erred in admitting the defendant’s MySpace.com account profile page, subscriber report, and two photographs from his to show identity under FRE 404(b), which was “classic evidence of bad character”; nonetheless the error was harmless based on overwhelming evidence of guilt. United States v. Phaknikone, 605 F.3d _ (11th Cir. May 10, 2010) (No. 09-10084)
With social networking sites increasing in popularity and use, evidence from a party’s page may be admissible under where the FRE requirements are satisfied. A recent Eleventh Circuit case considered the limits of other act evidence under FRE 404(b) from a bank robbery defendant’s social networking page.
In the case, defendant Phaknikone was prosecuted for committing fifteen armed bank robberies and related firearm violations. According to the Eleventh Circuit:
“The main issue presented in this appeal is whether the district court abused its discretion by admitting the profile page, subscriber report, and photographs from the MySpace.com account of Souksakhone Phaknikone to prove that he
committed a string of bank robberies “like a gangster.” Fed. R. Evid. 404(b).”
Phaknikone, 605 F.3d at _. At trial, the government introduced evidence from the defendant’s Myspace.com account to show identity under FRE 404(b). The Myspace evidence included: (1) the defendant’s profile page, which listed the name “Trigga” with “$100 bills … float[ing] down the screen”; (2) his subscriber report, listing the full name “Trigga FullyLoaded” with the email address gangsta_trigga@yahoo.com; and (3) and two photographs, including one of the defendant bearing a tattoo, “holding a handgun sideways, with a child and another man as passengers. The defendant was convicted as charged. He appealed the admission of the Myspace evidence.
The Eleventh Circuit agreed with the defendant that the evidence was inadmissible under FRE 404(b) because “it was offered to prove that he acted in conformity with his bad character.” However, the circuit affirmed the convictions because the error was harmless based on overwhelming evidence of guilt.
On the merits, the circuit noted that a stringent standard applied to identity evidence offered under FRE 404(b). In the Eleventh Circuit, “When extrinsic offense evidence is introduced to prove identity, ‘the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused. In other words, the evidence must demonstrate a modus operandi.’” United States v. Miller, 959 F.2d 1535, 1539 (11th Cir. 1992) (en banc) (quoted citation omitted); see also United States v. Jones, 28 F.3d 1574, 1580 (11th Cir. 1994) (“The signature trait requirement is imposed to insure that the government is not relying on an inference based on mere character — that a defendant has a propensity for criminal behavior.”). This standard was failed in the case. As the Eleventh Circuit explained:
“The MySpace evidence is classic evidence of bad character, which was offered by the government to prove only ‘action in conformity therewith.’ Fed. R. Evid. 404(b)…. The MySpace evidence is not evidence of identity: that is, evidence that Phaknikone robbed banks like a gangster. The subscriber report proved nothing more than Phaknikone’s nickname, the only name by which Lavivong had already testified he knew Phaknikone. The profile photographs accompanying the subscriber report and the photograph of Phaknikone and his ex-wife at a social event offer nothing to support a modus operandi about the bank robberies. The photograph of a tattooed Phaknikone, his face completely visible, in a car, holding a handgun sideways in his right hand, and with a child as a passenger, proves only that Phaknikone, on an earlier occasion, possessed a handgun in the presence of a child. Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait. The MySpace evidence is not evidence of a modus operandi and is inadmissible to prove identity.”
Phaknikone, 605 F.3d at _. Nonetheless, the error was harmless based on the “overwhelming evidence of Phaknikone’s guilt,” which included “Phaknikone’s confession to four of the robberies” and corroborated evidence concerning other bank robberies.
The Phaknikone case highlights that social networking evidence is inadmissible unless the requirements of the FRE are met.
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