United States v. Zhyltsou, No. 13-803-cr (Wesley, Livingston, and Lohier), available here
At defendant’s trial for unlawful transfer of a false
identification document, the government introduced a printed copy of a webpage
that it claimed was defendant’s profile page from the Russian social network
VK.com. The printout contained defendant’s
photograph, as well as information (defendant’s Skype ID, places of employment,
and birthplace) that corroborated testimony of the cooperating witness on whom
the government’s case depended. In
particular, the profile listed defendant’s Skype ID as “Azmadeuz,” which was
significant because the false identification document at issue had been emailed
to the cooperating witness from the address “azmadeuz@gmail.com.” A State Department special agent testified
that he had printed the profile page off the Internet, but acknowledged that he
did not know who had created the page. Defendant
objected, contending that the page had not been authenticated as his, so the
printout was inadmissible under Federal Rule of Evidence 901. The district court (Glasser, J.) disagreed, ruling
that the webpage was defendant’s and it was “fair to assume” that the information
it contained “was provided by him.”
Following defendant’s conviction, the Circuit reversed,
concluding that there was insufficient evidence to authenticate the profile page
as defendant’s. Although there was
information about defendant on the page, there was no evidence that defendant
himself created the page or was responsible for its contents. Had the government introduced “a flyer found
on the street that contained [defendant’s] Skype address and was purportedly
written or authorized by him,” the Circuit reasoned, “the district court surely
would have required some evidence that the flyer did, in fact, emanate from
[defendant].” The same was true here, but
“the mere fact that a page with [defendant’s] name and photograph happened to
exist on the Internet” at the time of trial “does not permit a reasonable
conclusion that this page was created by the defendant or on his behalf.” The Circuit noted that the contents or “distinctive
characteristics” of a document can sometimes provide circumstantial evidence
sufficient for authentication under Rule 901(b)(4), but only where the contents
of the document are “obscure” enough that they are “not a matter of common
knowledge.” Here, the information about defendant
was general and known to people with motives to create a false page, including
the cooperating witness. Nor was there
evidence that identity verification was necessary to create the profile page.
The error was not harmless because the only evidence linking defendant to the false identification document at issue was the profile page and the cooperating witness’s testimony. The cooperator’s credibility was questionable because he had pleaded guilty to three felonies involving deceit, and the jury could have believed that the cooperator had used his own expertise in fabricating identities and documents to create false evidence substantiating his testimony against defendant. The profile page, in particular, the “Azmadeuz” Skype ID, corroborated the witness’s testimony on the principal contested issue at trial, namely, that the “azmadeuz@gmail.com” account that sent the false identification document was defendant’s.
[Disclosure: Federal Defenders of New York, Inc.,
represents the defendant, Aliaksandr Zhyltsou, in this case.]