Admission Of Defendant's Social Media Profile Was Error Absent Sufficient Authentication
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 “email@example.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 “firstname.lastname@example.org” 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.]