## Facts

- Aliaksandr Zhyltsou was tried in the Eastern District of New York for unlawful transfer of a false identification document, based on allegations that he emailed a forged birth certificate to a cooperating witness, Vladyslav Timku.
- Timku testified that Zhyltsou was a forger and that, in summer 2009, Zhyltsou emailed him a forged birth certificate from “azmadeuz@gmail.com” so Timku could claim a military-service deferment in Ukraine.
- Apart from Timku’s testimony, the government had no direct evidence linking Zhyltsou to the “azmadeuz@gmail.com” address before offering a printout from VK.com, a social-networking website.
- Near the close of its case, the government introduced, through Diplomatic Security Service Agent Robert Cline, a printed VK.com profile page for “Alexander Zhiltsov,” a transliteration consistent with Zhyltsou’s name.
- The profile displayed a photograph appearing to be Zhyltsou, listed employment at Martex International and Cyber Heaven (matching trial testimony), and listed a Skype username “Azmadeuz.”
- Agent Cline had only cursory familiarity with VK.com, did not know its account-verification practices, and performed no investigation tying creation or control of the profile to Zhyltsou.
- Over a defense authentication objection under Federal Rule of Evidence 901 (and complaint of late disclosure), the district court admitted the printout; the government argued in closing that it was Zhyltsou’s own page corroborating the Gmail/Skype identifiers.
- The jury convicted Zhyltsou; he appealed.

## Issues

1. Whether the VK.com profile printout was sufficiently authenticated under Federal Rule of Evidence 901 as being Zhyltsou’s own profile (authored or controlled by him) for the purpose offered.
2. If authentication was insufficient, whether admitting the printout was harmless error.

## Decision

- The Second Circuit held the government failed to present sufficient evidence for a jury to find the VK.com printout was Zhyltsou’s profile as offered, so it was not properly authenticated under Rule 901.
- The court ruled the district court abused its discretion by admitting the printout.
- The court concluded the error was not harmless because the exhibit was important to linking Zhyltsou to the email address central to the prosecution’s theory.
- The conviction was vacated and the case remanded for retrial.

## Legal Principles

- Under Federal Rule of Evidence 901(a), the proponent must present evidence sufficient to support a finding that the item is what the proponent claims.
- The adequacy of authentication depends on the purpose for which the evidence is offered and requires a context-specific assessment.
- When a web page or social-media profile is offered to prove a particular person authored or controlled the account/content, mere consistency of the page’s name, photo, and biographical details with other evidence is insufficient without additional proof of attribution.
- Because online profiles can be fabricated, courts should require some evidentiary link—beyond matching identifiers—connecting the defendant to creation, control, or use of the account.

## Conclusion

The Second Circuit vacated the conviction because a social-media profile printout was admitted without a sufficient evidentiary basis to attribute it to the defendant under Rule 901, and the error was not harmless given the exhibit’s central role in corroborating the identity of the sender of the forged document.


United States v. Vayner, 769 F.3d 125 (2d Cir. 2014)