In U.S. v. Phaknikone, No. 09-10084 (May 10, 2010), the Court found that the district court violated Fed. R. Evid. 404(b) when it admitted evidence from the defendant’s MySpace account, but held that the error was harmless in light of the overwhelming evidence of guilt, and affirmed bank robbery convictions.
The MySpace evidence consisted, inter alia, of a photograph posted on Phaknikone’s profile page that showed him holding a gun, and of his nickname, “Trigga.” The Court rejected the government’s argument that the photograph was properly admitted under Rule 404(b) as proof of modus operandi. “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 Court found that the government improperly introduced photographs because it wanted the jury to infer that Phaknikone “is a gangster who is likely to rob banks.”
However, the error in admitting the evidence was harmless in light of Phaknikone’s confession to four bank robberies, the fact that stolen money was found at the scene of his arrest, and witness identification evidence. In addition, the government presented other modus operandi evidence.
Turning to sentencing, the district court rejected Phaknikone’s argument that his sentence of 2,005 months for seven bank robberies was greater than necessary. The sentence was based in part on a 25-year mandatory punishment under 18 U.S.C. § 924(c).