Second Circuit Vacates Defendant’s Conviction Due to Government’s Failure to Authenticate Social Media Evidence
The Second Circuit Court of Appeals has reversed a conviction for unlawful transfer of a false identification document (a forged birth certificate) because the district court abused its discretion and committed error in admitting a Russian social media page — akin to Facebook — that the government failed to authenticate as required by Federal Rule of Evidence 901.
In the trial underlying U.S. v. Vayner, et al., the government offered into evidence a printed copy of a web page from VK.com, “the Russian equivalent of Facebook,” claiming that it was defendant Aliaksandr Zhyltsou’s profile page. At trial, the government offered evidence from Vladyslav Timku, a cooperating witness who had plead guilty to conspiracy to commit wire fraud, aggravated identity theft, and impersonating a diplomat. Timku testified that he was familiar with Zhyltsou’s forgeries because he had hired Zhyltsou to create false documents for him, including the forged birth certificate at issue. Timku testified that Zhyltsou e-mailed the forged birth certificate to him using the Gmail address “email@example.com.” Timku’s testimony was the only evidence connecting Zhyltsou to this Gmail address.
The government also introduced a Special Agent from the State Department’s Diplomatic Security Service as a “surprise witness” to testify about the printout of the Russian social media page. Zhyltsou objected, claiming that the page was not properly authenticated and therefore inadmissible under Federal Rule of Evidence 902, but the district court admitted the evidence. The Special Agent testified that the page purportedly belonged to “Alexander Zhiltsov,” an alternative spelling of the defendant’s name, that it contained a photograph of the defendant, and that it contained other “details about his life consistent with Timku’s testimony about him,” including “Azmadeuz” as the social media user’s Skype address. In its closing argument, the government claimed that Zhyltsou used “Azmadeuz” as his online identity, as represented by his Skype and Gmail accounts. After a day and a half of deliberations, a jury convicted Zhyltsou.
On appeal, the Second Circuit explained that Federal Rule of Evidence 901 requires “evidence sufficient to support a finding that the item is what the proponent claims it is,” so that the evidence is admissible, but that the reliability of the evidence is a question for the jury. Although the Court called it “uncontroverted” that the information on the social media page was about Zhyltsou, it recognized that “there was no evidence that Zhyltsou himself had created the page or was responsible for its contents.” The Court further explained that the social media 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.”
The Court likened the social media page to “a flyer found on the street that contained Zhyltsou’s Skype address and was purportedly written or authorized by him,” and claimed that the district court “surely would have required some evidence that the flyer did, in fact, emanate from Zhyltsou.” The Second Circuit noted that although circumstantial evidence may authenticate a document, such evidence is typically appropriate when the substance of a document is obscure, whereas here, the evidence on the social media page was general, and known to others, like Timku, whom the court recognized may have reasons to create a fake profile for the defendant. The Court emphasized that there was no evidence in the record to suggest that the defendant had a page on the social media site, “much less that the page in question was that page,” or that a user must verify his identity in order to create a profile page.
Ultimately, the Second Circuit held that the improper admission of the unauthenticated social media was not harmless error because it was “vital” to the prosecution to prove that Zhyltsou used the firstname.lastname@example.org email address to send the false birth certificate to Timku, so the conviction was vacated. The Court reasoned that the jury might have relied on the Special Agent’s testimony about the social media page because the only other testimony linking the defendant to the “azmadeuz” moniker was from Timku, who had pled guilty to three felonies involving deceit.
The Circuit Court’s willingness to reverse a conviction based upon the failure to authenticate Facebook-like social media is a valuable lesson for litigants and parties. But, note that the Court explicitly refused to express any opinion on “what kind of evidence would have been sufficient to authenticate the VK page and warrant its consideration by the jury.” For now, litigants should follow the guidance of courts and treat social media like any other document, further emphasizing the “rule of thumb” to liken social media to non-cyberspace examples when using social media at trial. For more blogs advocating this rule of thumb, click here or here.