On appeal, the Defendant claimed the District Court abused its discretion in admitting the “bad character evidence” of the Defendant’s MySpace profile, subscriber report and photographs to prove he committed the bank robberies “like a gangster.” United States v. Souksakhone Phaknikone, 2010 U.S. App. LEXIS 9475 (11th Cir. Ga. May 10, 2010).
The Court of Appeals found that the MySpace evidence was improperly admitted, but since there was overwhelming evidence of the Defendant’s guilt, it was harmless error.
Government’s Attempted Use of MySpace Evidence
The Defendant was arrested after a string of bank robberies that culminated with a high-speed car chase that ended with the Defendant getting caught in barbed wire after attempting to flee on foot. Phaknikone, at *2-4. The Defendant confessed to several robberies after his arrest. Phaknikone, at *4-5.
The Government tried several times to admit the Defendant’s MySpace profile during the trial. The MySpace profile was a prosecutor’s dream come true, complete with the profile name “Trigga FullyLoaded,” photographs of him with a gun, $ 100 bills that floated down the screen and rap music playing. Phaknikone, at *8-9.
One theory the Government offered to use the MySpace profile photos was that the photos were “inextricably intertwined with [the Defendant’s] charged offense of possession of a firearm by a convicted felon.” Phaknikone, at *6-7.
After the jury was empanelled, the Government tried again to bring in MySpace photos to show the Defendant was “an individual who has access to having a gun, as shown and as evidenced by the brazen nature with which he publishes it to every single person on the internet through a MySpace account. . . . [I]t shows knowledge, it shows familiarity with guns.” Phaknikone, at *9.
The Government ultimately sought the admission of the Defendant’s MySpace profile, two photos and the subscriber report, which listed the “user’s unique identification number, registered first and last name, location, email address, date of registration, and IP address at registration.” Phaknikone, at *7-8.
There is a complicated trial history with the various attempts to bring in the MySpace evidence. One witness during the trial had robbed a bank with the Defendant. The witness testified he knew the Defendant as “Trigga” and knew the Defendant also had a MySpace profile. Phaknikone, at *11-12. The witness further identified the Defendant from a MySpace photo after being shown the photo on direct examination, thus allowing the Government to lay the foundation for the MySpace evidence. Phaknikone, at *12.
The District Court allowed the photos from the MySpace page to be admitted into evidence. Phaknikone, at *12. However, the District Court viewed the profile itself and subscriber report as character evidence and inadmissible. Phaknikone, at *12-13.
Not one to give up, the Government tried again to admit redacted portions of the MySpace profile and subscriber report. Phaknikone, at *13. This redacted portion was ultimately admitted after testimony from a MySpace employee. Phaknikone, at *15.
The Government in closing argument referred to the Defendant as “Trigga” and used a MySpace photo of the Defendant holding a gun in a car. Phaknikone, at *15. The jury was issued a limiting instruction that the evidence “could be considered to prove only intent or absence of mistake or accident.” Phaknikone, at *15.
Character Evidence Recap
Evidence hornbooks go into great detail discussing character evidence. The intersection of character evidence and social networking will fill a solid chapter in future publications, if not a book of its own.
The Defendant argued on appeal that his MySpace profile was offered for no other reason other than “to show action in conformity therewith.” Phaknikone, at *18-19, citing Fed. R. Evid. 404(b).
The Court of Appeals agreed that the MySpace profile was inadmissible character evidence, but that the error was harmless. Phaknikone, at *19.
The test for determining whether a trial court abused its discretion in admitting character evidence under Federal Rule of Evidence Rule 404(b) is as follows:
1) The evidence must be relevant to an issue other than the defendant’s character.
2) As part of the relevance analysis, there must be sufficient proof so that a jury could find that the defendant committed the extrinsic act.” United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc) (footnote omitted).
3) The probative value of the evidence must not be “substantially outweighed by its undue prejudice and the evidence must meet the other requirements of Rule 403.”
Phaknikone, at *19.
Courts apply this test “whenever the extrinsic activity reflects adversely on the character of the defendant, regardless whether that activity might give rise to criminal liability.” Phaknikone, at *19-20, citations omitted.
As the Court noted prior bad acts can be admissible to prove, “‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’” Phaknikone, at *20, citing Fed. R. Evid. 404(b).
Moreover, the character evidence rule under Rule 404(b) “’is a rule of inclusion . . . [and] 404(b) evidence, like other relevant evidence, should not lightly be excluded when it is central to the prosecution’s case.’” Phaknikone, at *20, citations omitted.
Proving Identity with the MySpace Profile
The Government’s use of the MySpace profile had to pass the “particularly stringent” analysis that the extrinsic evidence showed a “signature” crime. Phaknikone, at *20-21. As the Court summarized:
“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.'” Phaknikone, at *21, citations omitted.
Courts require that the extrinsic acts are uniquely the defendant’s “signature” crime to “insure that the government is not relying on an inference based on mere character–that a defendant has a propensity for criminal behavior.” Phaknikone, at *21, citations omitted.
MySpace Evidence Inadmissible Character Evidence
The Court found the subscriber report only contained the Defendant’s nickname, which the Government’s witness stated he knew on direct examination. Phaknikone, at *22.
The photos from the MySpace profile offered nothing showing a “signature” crime or “a modus operandi about the bank robberies.” Phaknikone, at *22.
Since the MySpace photos and subscriber report failed to show any evidence of modus operandi to prove identity, the evidence was inadmissible. Phaknikone, at *23.
The Court held:
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 government wanted the jury to infer that, because Phaknikone is willing to publish these kinds of photographs online, under an incendiary alias, he is a gangster who is likely to rob banks. The district court abused its discretion by admitting the MySpace evidence. Phaknikone, at *23.
A Harmless Abuse of Discretion in Admitting the MySpace Evidence
The Court of Appeals held the admission of the MySpace evidence was harmless, because there was “overwhelming evidence” of the Defendant’s guilt. Phaknikone, at *24. The Government’s evidence included confessions to four of the bank robberies, in addition to other evidence of the Defendant’s guilt. Id.
Bow Tie Thoughts
The Court’s reasoning and review of Federal Rule of Evidence 404(b) is commendable. Given the volume of information on social networking sites, prosecutors would be foolish not to search MySpace, Facebook or Twitter about a specific defendant.
However, just because a prosecutor can find out about a defendant’s bad character on Google does not mean it is admissible. One possible reason the Court spent so much time on the analysis of the MySpace evidence (besides exercising their Constitutional duties), was a warning shot to prosecutors: Don’t drag in evidence unless it is truly relevant and not to convict a defendant with “bad character” evidence. While the Court found it was a harmless error, the amount of time spent on the issue shows it is not a harmless issue.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.