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 fromazmadeuz@gmail.com (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, `timkuvlad@yahoo.com,’
fromazmadeuz@gmail.com.
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
@gmail.com 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
onVK.com (`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
azmadeuz@yahoo.com. 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 VK.com 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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