MySpace Profile Evidence Inadmissible to Show Defendant Committed ‘Gangster Style’ Robbery — U.S. v. Phaknikone

[Post by Venkat]

U.S. v. Phaknikone, Case No. 09-10084 (11th Cir.) (May 10, 2010)

Defendant Phaknikone was convicted of seven counts of armed robbery, carrying a firearm in relation to a crime of violence, and having possession of a firearm as a felon.

The government argued that the robberies shared a signature trait – they were committed by a common culprit whose signature trait was to “rob the banks like a gangster” (??):

the robberies lasted less than three minutes and involved one or two masked robbers who carried guns and shouted profanities at bank tellers. One of the robbers vaulted the teller counter, demanded that the tellers empty their cash drawers, and sometimes instructed them not to give him any “ink think” or “funny money.” In each robbery, at least one robber wore a black ski mask, a hooded sweatshirt, white-topped gloves, black athletic shoes, and held his handgun ‘gangster style’ in his left hand.

The government sought to admit defendant’s profile page, subscriber report, and two photographs, all from his MySpace account. Defendant’s profile name was listed as “Trigga,” and his profile page contained photographs and $100 bills that floated down the screen. “The song ‘Smile’ by . . . Tupac plays in the background.” He had also uploaded photos through his account, including one where his left arm was hanging out of a car window and he was holding a handgun in his right hand.

There was some back and forth with the district court and the government’s argument was that the profile page and other information was admissible to establish that “this is who the defendant really is”:

So I guess you can call it character, but you can also call it bank robber . . .

The district court expressed some hesitation at which point the government offered a redacted version of the profile report, and some of the profile photographs. The district court admitted the redacted version, and some of the photographs.

On appeal the Eleventh Circuit holds that admission of the MySpace profile and subscriber information was an abuse of discretion. The government pressed its argument that the MySpace evidence served to prove modus operandi – i.e., that “someone who shows off a gun in his car would commit the seven bank robberies”:

The MySpace evidence therefore was properly admitted for the jury to consider in determining the identity of the defendant as a masked, semiautomatic hand gun wielding, gangster-imitating, profane-language-speaking bank robber described by the victims and eyewitnesses of the robberies. [emphasis mine]

Not surprisingly, the court squarely rejects this argument.


Evan Brown (Oct. 15, 2009): “MySpace posting was not improper character evidence at murder trial

Prof. Goldman (Apr. 18, 2010): “MySpace Postings Foil Another Litigant–Sedie v. U.S.