U.S v. Zhyltsou
U.S Court of Appeals for the Second Circuit
13-803-cr
Decided on: October 3, 2014
Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
Conviction Vacated Case Remanded For Failure To Follow Rules Of Authentication Of Evidence
Issue: Whether the District Court abused its discretion under Federal Rules of Evidence Rule 901’s Authentication Requirement when it allowed the Government to introduce into evidence a print out of a social media web page claimed to be Defendant’s profile page without a sufficient basis on which to conclude that the proffered printout was what the Government claimed it to be.
Summary: Defendant was guilty of the unlawful transfer of a false identification document and appealed to the Second Circuit Court of Appeals where it was concluded that the District Court erred in permitting the introduction of a Russian social medial page that that contained statements constituting an admission that the Government told the jury was created by Defendant, without satisfying the authentication requirement of Rule 901 of the Federal Rules of Evidence. The Second Circuit Court of Appeals concluded that the evidentiary ruling was an abuse of the District Court’s discretion and vacated the conviction.
Holding: The Second Circuit Court of Appeals held that the District Court erred in admitting the web page evidence because the page had not been properly authenticated and was thus inadmissible under the Federal Rules of Evidence Rule 901.
Rule 901 of the Federal Rules of Evidence governs the authentication of evidence and provides, in pertinent part: to satisfy the requirement of authentication of identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the term is what the proponent claims it is.
This requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.
Facts: Defendant- Appellant Aliaksandr Zhyltsou was convicted after trial of the unlawful transfer of a false identification document. A Special Agent with the Department’s Diplomatic Security Service (DSS) testified that he intended to introduce a printout of a Russian web page, akin to Facebook, that the Government claimed it to be Defendant Zhyltsou’s profile page.
Defendant contended that the web page had not been properly authenticated and was thus inadmissible under Rule 901; the District Court overruled the objection.
Defendant appealed to the Second Circuit Court of Appeals where the Court concluded that the District Court abused its discretion, vacated the conviction and remanded for a new trial.
Legal Analysis: The Second Circuit Court of Appeals held that the preliminary decision regarding authentication is committed to the District Court, United States v. Sliker, 751 F.2d 477, 499 2d Cir.1984, and the Court of Appeals will review that decision for abuse of discretion, United States v. Dhinsa, 243 F.3d 635, 658 2d Cir.2001.
A District Court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions, Porter v. Quarantillo, 722 F.3d 94, 97 2d Cir.2013.
The Second Circuit Court of Appeals held that the requirement of authentication is a condition precedent to admitting evidence, United States v. Maldonado-Rivera, 922 F.2d 934, 957 2d Cir.1990. In general, a document may not be admitted into evidence unless it is shown to be genuine. 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. This requirement is satisfied is sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification, United States v. Pluta, 176, F.3d 43, 49 2d Cir. 1999.
The ultimate determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter for the jury.
The Second Circuit held that Rule 901 does not definitively establish the nature or quantum of proof that is required preliminarily to authenticate an item of evidence. The type and quantum of evidence required is related to the purpose for which the evidence is offered 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.
The Second Circuit held that they have said that ‘the bar for authentication of evidence is not particularly high’, United States v. Gagliardi, 506 F.3d 140, 151 2d. Cir. 2007. But even though the 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 as least ‘sufficient proof’ so that a reasonable juror could find in favor of authenticity or identification.
The Second Circuit further held, after the proponent of the evidence has adduced sufficient evidence to support a finding that the proffered evidence is what it is claimed to be, the opposing party remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other challenges go to the weight of the evidence—not to its admissibility, United States v. Tin Yat Chin, 371 F.3d 31, 35-38 ed. Cir. 2004.
In this case, the Second Circuit held that the Government failed to show any extrinsic information showing that the Defendant was the web page’s author or otherwise tying the page to the Defendant.
The mere fact that a web page with Defendant’s name and photograph happened to exist on the Internet does not permit a reasonable conclusion that this page was created by the Defendant or on his behalf. Other than the page itself, there was no evidence in the record that suggested that Defendant even had a social media webpage.
The Second Circuit held that they express no view on what kind of evidence would have been sufficient to authenticate the webpage 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 content. Rule 901 required that there be some basis on which a reasonable juror could conclude that the page in question was not just any Internet page, but in fact Defendant’s profile.
The Second Circuit Court of Appeals concluded that the District Court abused its discretion in admitting the 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— the Defendant’s profile page—and there was thus insufficient evidence to authenticate the web page and to permit its consideration by the jury. The evidence should therefore have been excluded. Accordingly, the Court of Appeals for the Second Circuit vacated the order of the District Court and remanded for a new trial.