United States v. Vayner

769 F.3d 125 (2nd Cir. 2014)

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Nature of the Case

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Facts

D went to trial on a single charge of transfer of a false identification document. Timku, a Ukrainian citizen residing in Brooklyn testified pursuant to a cooperation agreement. Timku had pled guilty to conspiracy to commit wire fraud, aggravated identity theft, and impersonating a diplomat. Timku was a friend of D and was familiar with D's work as a forger because he had previously paid Zhyltsou to create false diplomatic identification documents in a scheme to avoid taxes on the purchase and resale of luxury automobiles through a corporation called Martex International. Timku was a friend of D and was familiar with D's work as a forger because he had previously paid Zhyltsou to create false diplomatic identification documents in a scheme to avoid taxes on the purchase and resale of luxury automobiles through a corporation called Martex International. Timku asked D to create a forged birth certificate for D's fake infant daughter. Timku wanted to avoid compulsory military service in the Ukraine. D agreed to forge the birth certificate without charge, as a 'favor,' and began creating the fake birth certificate on a computer while the pair chatted in a Brooklyn Internet café. D sent the completed forgery via e-mail from azmadeuz@gmail.com. P government introduced a copy of the e-mail, with the forged birth certificate as an attachment, which reflected that it was sent to Timku's e-mail address, 'timkuvlad@yahoo.com,' from azmadeuz@gmail.com. Expert testimony showed that the e-mail originated in New York, but no evidence as to what computer it was sent from, or what IP addresses were linked to it. Only Timku's testimony directly connected D with the Gmail address that was used to transmit the fake birth certificate. P then called Robert Cline, a Special Agent with the State Department's Diplomatic Security Service. P intended to introduce a printout of a web page that the government claimed to be D's profile on VK.com (VK), which Special Agent Cline described as 'the Russian equivalent of Facebook.' D objected because the page had not been properly authenticated and was thus inadmissible. The district court ruled for P. There were pictures of D on the page. On the page under the heading, 'Contact Information,' the profile listed 'Azmadeuz' as 'D's' address on Skype. The web page also reflected that 'Zhiltsov' worked at a company called 'Martex International' and at an Internet café called 'Cyber Heaven,' which corresponded with Timku's earlier testimony that D and Timku had both worked for those entities. Cline admitted that he had only a 'cursory familiarity' with VK, had never used the site except to view this single page, and did not know whether any identity verification was required in order for a user to create an account on the site. D was found guilty and appealed.