United States v. Vayner, Failure to Properly Authenticate Russian Facebook Page Results in Vacated Judgment
Judge Livingston in the Second Circuit, vacated a judgment against a defendant for the unlawful transfer of a false identification document after finding that the district court erred in admitting the defendant’s alleged profile page from the Russian equivalent of Facebook which the government failed to properly authenticate.
Aliaksandr Zhyltsou was convicted on a single count of unlawful transfer of false identification documents and appealed the conviction. At trial, Vladyslav Timku, a Ukrainian citizen living in Brooklyn, testified that Zhyltsou provided him with a forged a birth certificate showing that Timku was the father of a made up infant daughter. Timku used the birth certificate to avoid mandatory military service in Ukraine. Timku further testified that Zhyltsou sent him the forged birth certificate via email from the Gmail account, “Anzmadeuz.” The government offered several other witnesses who corroborated some portions of Timku’s testimony. Although there was expert testimony that the email originated in New York, there was no evidence as to what computer it was sent to and what IP addresses were linked to it. At the end of the prosecution’s case, it was only Timku’a testimony that connected Zhyltsou to the Gmail address used to send the fake birth certificate to Timku.
However, before the prosecution rested, an unexpected government witness, Special Agent Robert Cline with the State Department’s Diplomatic Security Service, introduced a printout of a web page that the government claimed was Zhyltsou’s profile page on VK.com which Cline described as the Russian version of Facebook. The district court overruled the objection and concluded that the VK page was Zhyltsou’s Facebook page.
Cline testified that the VK page purported to be the profile of “Alexander Zhiltsov,” an alternative spelling of Zhyltsou’s name. He also testified that the profile contained a picture of Zhyltsou, and listed “Azmaduez” as “Ziltsov’s” address on Skype. The profile also noted that he worked at a company called “Martex International” and at an Internet café called “Cvber Heaven” which corresponded with Timku’s earlier testimony that Timku and Zhyltsou worked at those entities. Cline testified that he only had “cursory familiarity” with VK and was unaware of whether or not identity verification was needed to create an account on the site. The government argued that it had proven that Zhyltsou had produced the fake birth certificate and sent it to Timku using Gmail and said that the proof of the connection between the two was that the Gmail address could be found on Zhyltsou’s Russian Facebook page. Zhyltsou objected, arguing that the page had not been properly authenticated and was therefore inadmissible under Federal Rule of Evidence 901. The district court overruled the objection and concluded that the VK page was Zhyltsou’s Facebook page.
The appellate court found that the government did not provide a “sufficient basis” upon which to conclude that the printout was the VK page of Zhyltsou. The court held that while it was “uncontroverted” that information about Zhyltsou appeared on the VK page, there was no evidence that Zhyltsou himself had created the page or its contents. The court further noted that the mere fact that the page existed on the Internet at the time of Cline’s testimony “does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” The court continued by noting that the information contained about Zhyltsou on the VK profile page was common knowledge. Additionally, there was no evidence that “identify verification was necessary to create the VK page which might also have helped render more than speculative the conclusion that the page in question belonged to Zhyltsou.”
The court offered no opinion as to the kind of evidence that would be necessary to authenticate the page. However, the court noted that as the page was being used to corroborate Timku’s testimony that it was Zhyltsou who used email id “Azmaduez” to send the forged birth certificate, “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.” The court held that no such showing was made and excluded the evidence.
Turning to the issue of whether or not the erroneous evidence was a harmless error, the court found that that while not “cumulative,” the VK profile played an important role in the government’s case and was not harmless error and vacated the judgment.
United States v. Vayner, — F.3d —, 2014 WL 4942227 (2d Cir. Oct. 3, 2014)