Monday, October 13, 2014

The “Russian Facebook Page” and Unlawful Transfer of a False Identification Document

After a jury convicted Aliaksandr Zhyltsou of “a single count of the unlawful transfer of a false identification document, in violation of 18 U.S. Code § 1028(a)(2) and (b)(1)(A)(ii)”, he appealed.  U.S. v. Zhyltsou, 2014 WL 4942227 (U.S. Court of Appeals for the 2d Circuit 2014).  The Court of Appeals begins by explaining that 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 (the `Gmail address’), an e-mail 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, `,’
U.S. v. Zhyltsou, supra.
The court also explains that the prosecution presented several other witnesses who
presented several other witnesses who 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.
U.S. v. Zhyltsou, supra.  In a footnote, the court notes that the prosecution did introduce
evidence showing that the azmadeuz account was closed two days after Zhyltsou had an encounter with federal agents. In summation, the government argued that the closure circumstantially supported the theory that Zhyltsou was the owner of the account.

However, federal agents were questioning Timku that day regarding other criminal charges. (Zhyltsou happened to be present and was himself questioned only briefly.) The defense intimated in its summation that Timku would also have had reason to delete the account at that time.
U.S. v. Zhyltsou, supra. 
The Court of Appeals goes on to explain, in the text of the opinion, that before the
prosecution rested . . . 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 it intended to introduce a printout of a web page that the government claimed to be Zhyltsou's profile (`VK’), which Cline described as `the Russian equivalent of Facebook.’ . . .

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.’ . . . 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.’
U.S. v. Zhyltsou, supra. 
The opinion then explains that during Cline’s testimony, he 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, Cline next pointed out that under the heading, `Contact Information,’ the profile listed `Azmadeuz’ as `Zhiltsov's’ address on Skype (a service 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 and the Gmail address could be found on Zhyltsou's ‘own Russian Facebook page’:

`It has the defendant's profile picture on it. You'll see that it confirms other facts that you've learned about the defendant. That he worked at Martex and at Cyber Heaven, for example. He told [a DSS agent] that he's from Belarus. This page says he's from Minsk, the capital of Belarus. And on that page, you'll see the name he uses on Skype which, like e-mail, is a way to correspond with people over the Internet.

Azmadeuz. That [is] his online identity, ladies and gentlemen, for Skype and for [G]mail. That is [w]hat the defendant calls himself. Timku even told you that the defendant sometimes uses That [is] his own name on the Internet. Timku didn't make it up for him. The defendant made it up for himself.

Aliaksandr Zhyltsou made a fake birth certificate and he sent it through e-mail. . . . The defendant is guilty. Find him so. Thank you.’
U.S. v. Zhyltsou, supra. 
The jury convicted Zhyltsou after “deliberating for a day and a half” and the judge later sentenced him “principally to time served and one year of post-release supervision.” U.S. v. Zhyltsou, supra. In a footnote, the Court of Appeals explains that “Zhyltsou was denied bail pending trial; all told, he spent approximately one year in detention.” U.S. v. Zhyltsou, supra. 
On appeal, Zhyltsou reiterated the argument he had made at trial, i.e., that the printout of the web page the government claimed was Zhyltsou's profile on should not have been admitted into evidence because it “had not been properly authenticated and was thus inadmissible under Federal Rule of Evidence 901.” U.S. v. Zhyltsou, supra. The Wikipedia entry you can find here outlines why authentication is important and what is involved in authenticating evidence.
As noted above, the U.S. District Court Judge who presided over the trial overruled Zhyltsou's objection because he found 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.’ . . 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.’ . . .
U.S. v. Zhyltsou, supra.
The Court of Appeals began its analysis of Zhyltsou's argument by explaining that the
`requirement of authentication is . . .  a condition precedent to admitting evidence.’ U.S. v. Sliker, 751 F.2d 477 (U.S. Court of Appeals for the 2d Circuit 1984). . . . Rule 901 of the Federal Rules of Evidence governs the authentication of evidence and provides, in pertinent part: `To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.’ Rule 901(a). `This requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.’ U.S. v. Pluta, 176 F.3d 43 (U.S. Court of Appeals for the 2d Circuit 1999). . . . The ultimate determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter for the jury. See U.S. v. Sliker, supra.

Rule 901 `does not definitively establish the nature or quantum of proof that is required’ preliminarily to authenticate an item of evidence. U.S. v. Sliker, supra. `The type and quantum of evidence’ required is “related to the purpose for which the evidence is offered,’ U.S. v. Sliker, supra, and depends upon a context-specific determination whether the proof advanced is sufficient to support a finding that the item in question is what its proponent claims it to be. We have said `[t]he bar for authentication of evidence is not particularly high.’ U.S. v. Gagliardi, 506 F.3d 140 (U.S. Court of Appeals for the 2d Circuit 2007).  But even though `[t]he proponent need not rule out all possibilities inconsistent with authenticity, or . . . prove beyond any doubt that the evidence is what it purports to be,’ . . . there must nonetheless be at least `sufficient proof . . .  so that a reasonable juror could find in favor of authenticity or identification,’ U.S. v. Pluta, supra.

The `proof of authentication may be direct or circumstantial.’ U.S. v. AlMoayad, 545 F.3d 139 (U.S. Court of Appeals for the 2d Circuit 2008). The simplest (and likely most common) form of authentication is through `the testimony of a ‘witness with knowledge’ that “a matter is what it is claimed to be.”’ U.S. v. Rommy, 506 F.3d 108 (U.S. Court of Appeals for the 2d Circuit 2007) (quoting Federal Rules of Evidence 901(b)(1)). . . . This is by no means exclusive, however: Rule 901 provides several examples of proper authentication techniques in different contexts. . . .

Some examples illustrate the point. For instance, we have said that a document can be authenticated by `distinctive characteristics of the document itself, such as its “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.”’ U.S. v. MaldonadoRivera, 922 F.2d 934 (U.S. Court of Appeals for the 2d Circuit 1990) (quoting Fed.R.Evid. 901(b)(4)). . . .  Or, where the evidence in question is a recorded call, we have said that `[w]hile a mere assertion of identity by a person talking on the telephone is not in itself sufficient to authenticate that person's identity, some additional evidence, which need not fall into any set pattern, may provide the necessary foundation.’ U.S. v. Dhinsa, 243 F.3d 635 (U.S. Court of Appeals for the 2d Circuit 2001). . . .
U.S. v. Zhyltsou, supra.
The court then took up the issue before it, explaining that based on the above principles,
we conclude that the district court abused its discretion in admitting the VK web page, as it did so without proper authentication under Rule 901. The government did not provide a sufficient basis on which to conclude that the proffered printout was what the government claimed it to be -- Zhyltsou's profile page ‘-- and there was thus insufficient evidence to authenticate the VK page and to permit its consideration by the jury.
U.S. v. Zhyltsou, supra.
The Court of Appeals then explained, in detail, why it reached this conclusion:
[T]he government initially advanced the argument that it offered the evidence simply as a web page that existed on the Internet at the time of trial, not as evidence of Zhyltsou's own statements. The prosecution first represented . . . that it was presenting the VK page only as `what [Special Agent Cline] is observing today on the Internet, just today,’ . . . conceded `the agent does not know who created it,’ and averred that Cline would testify only that `he saw [the VK page] and this is what it says’. . . . Consistent with these representations, Cline testified only that the page containing information related to Zhyltsou was presently accessible on the Internet and provided no extrinsic information showing that Zhyltsou was the page's author or otherwise tying the page to Zhyltsou.

At other times, however, the government repeatedly made a contrary argument to both the trial court and the jury, and insisted that the page belonged to and was authored by Zhyltsou. Nor is this surprising. The VK profile page was helpful to the government's case only if it belonged to Zhyltsou -- if it was his profile page, created by him or someone acting on his behalf -- and thus tended to establish that Zhyltsou used the moniker `Azmadeuz’ on Skype and was likely also to have used it for the Gmail address from which the forged birth certificate was sent, just as Timku claimed. Moreover, the district court overruled Zhyltsou's hearsay objection and admitted a printout of the profile page, which stated that `Zhiltsov's’ Skype username was `Azmadeuz,’ because it found the page was created by Zhyltsou, and the statement therefore constituted a party admission. . . . (The Court: `This is a statement made by your client. This is his Facebook record.’); . . . (describing the government's plan to establish that the Gmail address was Zhyltsou's `by what [the court] regard[ed] to be perfectly legitimate admissible evidence of what it is, the assumption is quite clear that what appears on the Facebook page is information which was provided by’ Zhyltsou); . . . (The Court: `It's his Facebook page. The information on there, I think it's fair to assume, is information which was provided by him.’). . . .

As noted above, Rule 901 requires `evidence sufficient to support a finding that the item is what the proponent claims it is.’ It is uncontroverted that information about Zhyltsou appeared on the VK page: his name, photograph, and some details about his life consistent with Timku's testimony about him. But there was no evidence that Zhyltsou himself had created the page or was responsible for its contents. 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? . . . . 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.

It is true that the contents or `distinctive characteristics’ of a document can sometimes alone provide circumstantial evidence sufficient for authentication. Federal Rule of 901(b)(4). But this method is generally proper when the document `deals with a matter sufficiently obscure . . . so that the contents of the writing were not a matter of common knowledge.’ U.S. v. Maldonado–Rivera, supra. . . . Here, the information contained on the VK page was general, and it 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.

We express no view on what kind of evidence would have been sufficient to authenticate the VK page and warrant its consideration by the jury. Evidence may be authenticated in many ways, and as with any piece of evidence whose authenticity is in question, the “type and quantum” of evidence necessary to authenticate a web page will always depend on context. U.S. v. Sliker, supra. Given the purpose for which the web page in this case was introduced, however -- to support the inference that it was Zhyltsou who used the moniker `azmadeuz’ for the Gmail address from which the forged birth certificate was sent -- Rule 901 required that there be some basis on which a reasonable juror could conclude the page in question was not just any Internet page, but . . . Zhyltsou's profile. No such showing was made and the evidence should have been excluded.
U.S. v. Zhyltsou, supra (emphasis in the original).
The Court of Appeals then goes on to explain why it was vacating Zhyltsou's conviction and remanding the case for a new trial:
It was . . . vital to the government's case to prove that it was in fact Zhyltsou who used the Gmail address to send the fake birth certificate to Timku. This was the only point truly in contention at trial. Further, the prosecution's case on this point was far from overwhelming: with the limited exception of the circumstantial evidence that the Gmail account was closed shortly after Zhyltsou encountered federal agents, the only evidence that connected Zhyltsou to the emailed birth certificate, other than the VK page, was Timku's testimony.

The jury may well have been reluctant to rely on Timku's testimony alone. Pursuant to his cooperation agreement, Timku pled guilty to three felonies -- aggravated identity theft, impersonating a diplomat, and conspiracy to commit wire fraud -- each of which involved deceit. Timku's business operation, which he said he carried on with Zhyltsou's help, involved using fake identification papers and shell companies to commit tax fraud in the course of exporting luxury vehicles for sale in Ukraine and Russia. Timku admitted he had destroyed evidence and fled the country after federal agents questioned him concerning this scheme. He also testified that he paid a United States citizen to enter into a sham marriage with him and opened a joint bank account in their names with the intention of deceiving immigration authorities into thinking that the marriage was genuine. All this likely undermined Timku's credibility, and may even have led the jury to believe that Timku could have used his expertise in fabricating identities and documents to create false evidence to substantiate his testimony against Zhyltsou.

Moreover, . . . the VK page provided significant corroboration of Timku's testimony that the Gmail address belonged to Zhyltsou. As the AUSA argued in urging that the VK page should be admitted by the district court, the fact that `this particularly unique section of letters that make up his e-mail address [is] found on [Zhyltsou's] Facebook page with his picture go[es] a long way to proving that he is the owner of this address.’  . . . The district judge agreed that the evidence tended to establish that the Gmail address was Zhyltsou's. . . . Indeed, the AUSA pressed the significance of the VK profile in the final words of her summation, arguing to the jury that the defendant's own web page linked him -- through the moniker `Azmadeuz’ -- to the Gmail account used to send the birth certificate. . . .

In sum, the government's proof on the issue of whether Zhyltsou transferred the fake birth certificate was not unassailable. As a result, the printout of the VK profile was by no means cumulative, but played an important role in the government's case, which the AUSA augmented by highlighting the evidence in her summation. . . . Because the wrongly admitted evidence was `the sort of evidence that might well sway a jury’ confronted with a case otherwise turning solely on the word of a single witness whose credibility was weak, . . . we conclude that the district court's error was not harmless and requires vacatur.
U.S. v. Zhyltsou, supra.  If you are interested, the story you can find here provides a little more information about this case, and this opinion.

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