Argued March 24, 2014
Appeal from a judgment of conviction of the United States District Court for the Eastern District of New York (Glasser, J.), following a jury verdict finding Defendant-Appellant Aliaksandr Zhyltsou guilty of the unlawful transfer of a false identification document. We conclude that the district court erred in permitting the introduction of a Russian social media page that the government told the jury was created by Zhyltsou, without satisfying the authentication requirement of Rule 901 of the Federal Rules of Evidence. Because this evidentiary ruling was an abuse of the district court's discretion and also was not harmless, we VACATE the conviction and REMAND the case for a new trial.
TALI FARHADIAN (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
YUANCHUNG LEE, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.
Before: WESLEY, LIVINGSTON, and LOHIER, Circuit Judges.
Debra Ann Livingston, Circuit Judge:
In Defendant-Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false identification document, the government offered into evidence a printed copy of a web page, which it claimed was Zhyltsou's profile page from a Russian social networking site akin to Facebook. The district court (Glasser, J.) admitted the printout over Zhyltsou's objection that the page had not been properly authenticated under Rule 901 of the Federal Rules of Evidence. We conclude that the district court erred in admitting the web page evidence because the government presented insufficient evidence that the page was whet 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. Because the district court abused its discretion in admitting the evidence, and because this error was not harmless, we vacate the conviction and remand for retrial.
Aliaksandr Zhyltsou was convicted after trial on a single count of the unlawful transfer of a false identification document, in violation of 18 U.S.C. § 1028(a)(2) and (b)(1)(A)(ii). At trial, the government's principal evidence against Zhyltsou was the testimony of Vladyslav Timku, a Ukrainian citizen residing in Brooklyn who testified pursuant to a cooperation agreement and who had earlier pled guilty to conspiracy to commit wire fraud, aggravated identity theft, and impersonating a diplomat. Timku testified that he was a friend of Zhyltsou's and was familiar with Zhyltsou's work as a forger because he had previously paid Zhyltsou to create false diplomatic identification documents in a scheme to avoid taxes on the purchase and resale of luxury automobiles through a corporation called Martex International. Timku said that in the summer of 2009 he asked Zhyltsou to create a forged birth certificate that would reflect that Timku was the father of an invented infant daughter. Timku sought the birth certificate in an attempt to avoid compulsory military service in his native Ukraine, which permits a deferment of service for the parents of children under three years of age. According to Timku, Zhyltsou agreed to forge the birth certificate without charge, as a " favor," and began creating the fake birth certificate on a computer while the pair chatted in a Brooklyn Internet café . Timku testified that Zhyltsou sent the completed forgery to Timku via e-mail on August 27, 2009 from email@example.com (the " Gmail address" ), an email address that Timku had often used to correspond with Zhyltsou. After receiving the document, Timku thanked Zhyltsou and then went on to use the fake document to receive the deferment from military service that he sought. The government introduced a copy of the e-mail, with the forged birth certificate as an attachment, which reflected that it was sent to Timku's e-mail address, " firstname.lastname@example.org," from email@example.com.
The government presented several other witnesses who corroborated certain aspects of Timku's testimony -- regarding the falsity of the birth certificate, the Ukrainian military deferment for parents of young children, and the path of the e-mail in question through servers in California. There was expert testimony to the effect that the e-mail originated in New York, but no evidence as to what computer it was sent from, or what IP addresses were linked to it. Thus, near the conclusion of the prosecution's case, only Timku's testimony
directly connected Zhyltsou with the Gmail address that was used to transmit the fake birth certificate to Timku. Before the prosecution rested, however, the government indicated to the district court that it planned to call an unexpected final witness: Robert Cline, a Special Agent with the State Department's Diplomatic Security Service (" DSS" ). The government said that it intended to introduce a printout of a web page that the government claimed to be Zhyltsou's profile on VK.com (" VK" ), which Special Agent Cline described as " the Russian equivalent of Facebook." J.A. 36. Zhyltsou objected, contending that the page had not been properly authenticated and was thus inadmissible under Federal Rule of Evidence 901. The district court overruled the defense objection, concluding that the VK page was " [Zhyltsou's] Facebook page. The information on there, I think it's fair to assume, is information which was provided by him." J.A. 32. Moreover, the court ruled, " There's no question about the authenticity of th[e] document so far as it's coming off the Internet now." J.A. 32.
During his testimony, Special Agent Cline identified the printout as being from " the Russian equivalent of Facebook." He noted to the jury that the page purported to be the profile of " Alexander Zhiltsov" (an alternate spelling of Zhyltsou's name), and that it contained a photograph of Zhyltsou. Importantly for the government's case, Special Agent Cline next pointed out that under the heading, " Contact Information," the profile listed " Azmadeuz" as " Zhiltsov's" address on Skype (a service that Special Agent Cline described as a " voiceover IP provider" ). The web page also reflected that " Zhiltsov" worked at a company called " Martex International" and at an Internet café called " Cyber Heaven," which corresponded with Timku's earlier testimony that Zhyltsou and Timku had both worked for those entities. On cross-examination, Special Agent Cline admitted that he had only a " cursory familiarity" with VK, 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. In its summation, the government argued that it had proven that Zhyltsou had produced the fake birth certificate and sent it to Timku using the Gmail address. In the final words of her summation, the Assistant United States Attorney (" AUSA" ) argued that proof of the connection between Zhyltsou ...