United States v. Vayner, 769 F.3d 125

Background

Zhyltsou was convicted for transferring a forged birth certificate via an email from azmadeuz@gmail.com to cooperator Vladyslav Timku; Timku testified he received the forgery from Zhyltsou and used it to obtain a military deferment in Ukraine.
The government’s direct link between Zhyltsou and the Gmail address rested mainly on Timku’s testimony; limited circumstantial evidence showed the Gmail account was closed shortly after federal agents questioned Zhyltsou and others.
At trial the government introduced a printed VK.com profile page (a Russian social-networking site) purported to be Zhyltsou’s, showing his photo, employment (Martex, Cyber Heaven), and the Skype handle “Azma-deuz.”
Defense objected that the VK printout was not properly authenticated under Fed. R. Evid. 901 and also raised a Rule 16 late-disclosure complaint; the district court overruled and admitted the page, treating it as the defendant’s own statement (opposing-party admission).
The jury convicted; on appeal the Second Circuit held the VK printout was not properly authenticated because the government produced no proof that Zhyltsou created or controlled the VK profile, and the page was not harmless error given the weakness of other evidence tying Zhyltsou to the Gmail account.
Judgment vacated and case remanded for a new trial; the court declined to reach the Rule 16 late-disclosure claim because vacatur was required on authentication/harmless-error grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Authentication under Fed. R. Evid. 901 of the VK.com printout	VK page was accessible on the Internet and contained defendant's name/photo/work info; agent testified to observing it, so it should be admitted	No evidence the page was created/controlled by Zhyltsou; mere presence on the Internet is insufficient to attribute authorship	Admission was an abuse of discretion: government failed to present sufficient evidence that the page was the defendant's profile (not just any internet page)
Use of VK contents as opposing-party admission (hearsay)	If the page is the defendant's profile, statements (e.g., Skype handle) are party admissions and non-hearsay	Absent authentication, statements on the page cannot be attributed to the defendant and thus are hearsay	Court treated the page as party admission only after concluding it was defendant's page; because authentication failed, the hearsay ruling was incorrect to admit it as defendant's statement
Harmless-error analysis for erroneous admission	Even if admitted in error, the VK page was cumulative and did not substantially influence the verdict	VK page was central corroboration of Timku on the key issue (who owned the Gmail account); government’s case on that point was weak	Error was not harmless: given reliance on VK page and Timku's suspect credibility, appellate court vacated conviction and remanded for retrial
Rule 16 late disclosure (untimely production of VK printout)	Government failed to disclose page pretrial, prejudicing defense ability to forensically investigate source	Government argued authentication/usage justified late introduction; district court did not exclude on that basis	Court declined to decide Rule 16 claim because vacatur on authentication/harmless-error grounds made further review unnecessary

Key Cases Cited

United States v. Sliker, 751 F.2d 477 (2d Cir. 1984) (authentication preliminary determination committed to district court)
United States v. Pluta, 176 F.3d 43 (2d Cir. 1999) (authentication satisfied if reasonable juror could find in favor of authenticity)
United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir. 1990) (distinctive characteristics of a document may authenticate it)
United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001) (telephone-identity authentication requires additional corroboration beyond mere assertion)
United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007) (authentication bar is not particularly high but must permit reasonable juror finding)
United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008) (authentication may be direct or circumstantial)
United States v. Tropeano, 252 F.3d 653 (2d Cir. 2001) (authentication renders evidence admissible; reliability is for the jury)
United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003) (harmless-error standard for nonconstitutional evidentiary errors)
United States v. Kaplan, 490 F.3d 110 (2d Cir. 2007) (erroneously admitted evidence that goes to heart of case is less likely to be harmless)
United States v. Grinage, 390 F.3d 746 (2d Cir. 2004) (erroneously admitted evidence that is important when other proof is weak requires reversal)