Thursday, October 30, 2014

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 “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.]

Friday, September 19, 2014

Car Parked Outside Victim's House Is Within Victim's "Presence" For Purposes of Federal Carjacking Statute

United States v. Soler, No. 12-2077-CR (2d. Cir. July 22, 2014) (Katzmann, Walker, and Droney), available here

The federal carjacking statute, 18 U.S.C. § 2119, criminalizes the forcible taking of an automobile “from the person or presence of another.”  Following decisions by all the other Courts of Appeals to have addressed the question, the Circuit here held that an automobile is in the “presence” of a victim “if it is so within his or her reach, inspection, observation, or control that he or she could, if not overcome by violence or prevented by fear, retain possession of it.”  
Defendants robbed a house and, on the way out, demanded that one of the occupants give them the keys to a car parked in front of the house.  The car was parked on a curb 10-15 feet, or a 5-second walk, from the front door to the house.  The victim testified that the car could be seen from the front door, but that she could not see the car at the time defendants demanded the keys because she was lying on the floor.  Other trial evidence revealed that the interior of the house was separated from the car by a solid front door, a short driveway, a wrought iron fence, and a sidewalk.  The car could be unlocked from the front door with a remote keychain.
On appeal, the Circuit rejected defendants’ argument that the statutory term “presence” means “in front of, or in the area immediately around, a person,” adopting instead the more expansive definition above.  Nonetheless, this definition of presence “is not boundless,” but “implies a degree of physical proximity between the victim and the vehicle.”  Citing with approval decisions of other Courts of Appeals affirming carjacking convictions where the automobiles stolen were parked outside the premises where the victims were robbed, the Circuit concluded that the evidence in this case likewise sufficed to prove presence.
[Disclosure: Federal Defenders of New York, Inc., represents one of the defendants, William Soler, in this case.]