Second Circuit Vacates Conviction for Failure to Authenticate Printed Profile from “Russian equivalent of Facebook”

United States v. Vayner, — F.3d —, 2014 WL 4942227 (2d Cir. Oct. 3, 2014)

In this case, the Second Circuit vacated the defendant’s conviction “on a single charge of transfer of a false identification document” upon concluding that the district court erred in admitting a printout of the defendant’s alleged profile on “the Russian equivalent of Facebook,” (“VK.com”) “because the government presented insufficient evidence that the page was what the government claimed it to be—that is, Zhyltsou’s profile page, as opposed to a profile page on the Internet that Zhyltsou did not create or control.”

Defendant was convicted of providing Vladyslav Timku with a forged birth certificate for an “invented infant daughter,” intended to keep Timku from compulsory military service in his native Ukraine.  Timku testified against the defendant and indicated that he had received the completed forgery from the email address azmadeuz@gmail.com Although other testimony was offered to corroborate “certain aspects” of Timku’s testimony, as the prosecutor’s case neared its conclusion, “only Timku’s testimony directly connected Zhyltsou with the Gmail address that was used to transmit the fake birth certificate”—a vital component of the prosecution’s case.  Before the prosecution rested, however, it called an “unexpected final witness: Robert Cline, a Special Agent with the State Department’s Diplomatic Security Service.”  Through Cline, the prosecution entered into evidence a printout from what Cline called “the Russian equivalent of Facebook” which purported to be a profile of the defendant, including his photograph and other facts about which Timku had testified.  The alleged profile also listed “Azmadeuz” as the profile owner’s address on Skype.  During his testimony, however, Cline admitted that he “had only a ‘cursory familiarity’ with [the website], had never used the site except to view this single page, and did not know whether any identity verification was required in order for a user to create an account on the site.”    Defendant’s objection that the profile had not been properly authenticated was overruled.

In its closing argument, the prosecution argued that “proof of the connection between Zhyltsou and the Gmail address could be found on Zhyltsou’s ‘own Russian Facebook page.’”  Thus, the prosecution argued that the alleged profile page was not only about the defendant, but authored by him.  “But,” as the Court noted, “there was no evidence that Zhyltsou himself had created the page or was responsible for its contents.”  Indeed, the Court continued:

Had the government sought to introduce, for instance, a flyer found on the street that contained Zhyltsou’s Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from Zhyltsou. Otherwise, how could the statements in the flyer be attributed to him? Cf. Dhinsa, 243 F.3d at 658–59 (“[A] mere assertion of identity by a person talking on the telephone is not in itself sufficient to authenticate that person’s identity….”). And contrary to the government’s argument, the mere fact that a page with Zhyltsou’s name and photograph happened to exist on the Internet at the time of Special Agent Cline’s testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.

While the Court acknowledged that “‘the contents or ‘distinctive characteristics’ of a document can sometimes alone provide circumstantial evidence sufficient for authentication,” in this case, the Court reasoned:

[T]he information contained on the VK page allegedly tying the page to Zhyltsou was also known by Timku and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant. Other than the page itself, moreover, no evidence in the record suggested that Zhyltsou even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to Zhyltsou.

Ultimately, the Court concluded that because the page was intended to corroborate Timku’s testimony regarding the defendant’s alleged use of “azmadeuz,” “Rule 901 required that there be some basis beyond Timku’s own testimony on which a reasonable juror could conclude that the page in question was not just any Internet page, but in fact Zhyltsou’s profile. No such showing was made and the evidence should therefore have been excluded.”

The Court went on to conclude that the printout “played an important role in the government’s case” and that the error of its admission was not harmless.  Thus, the conviction was vacated and the case remanded for a new trial.

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