Opinion
18-P-940
04-06-2020
COMMONWEALTH v. Charles G. EL HELOU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted in the District Court of larceny over $250 by a single scheme. See G. L. c. 266, § 30. His arguments on appeal all relate to an exhibit admitted at trial: a document that, a bank employee testified, is a phony letter purportedly from an operations manager at the bank. The victim testified that he received the letter as an attachment to an e-mail from the defendant. That e-mail was not in evidence. According to the defendant's testimony the e-mail was received at a time when the victim had given a representative of the defendant $11,000 in payment for a Toyota 4Runner sports utility vehicle (4Runner) that the defendant and the victim had agreed would be shipped to the victim in Lebanon for sale to a third party. The 4Runner had not arrived and the victim had asked for his $11,000 back. The defendant had replied by e-mail that it would take several days to send the money, which the victim never received. The fake letter purports to be addressed to the defendant. It indicates that $11,000 was transferred from his account, the correct number of which is on the letter, to the account of the victim. It also states that the transfer would take five to seven days, although the bank employee testified that, not only does the bank not send letters like this to document wire transfers, but such transfers do not take five to seven days.
The defendant argues first that this letter was not adequately authenticated. In order for a piece of evidence to be authenticated there must be sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the evidence in question is what its proponent claims, in this case a document sent by the defendant to the victim as an attachment to an e-mail. See Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014) (standard for authentication). We see no abuse of discretion or other error of law in the trial judge's admission of this document as there was sufficient evidence from which a jury could draw that conclusion by a preponderance of the evidence. Not only was there the testimony of the victim that this document was, in fact, sent to him as an attachment to an e-mail, but the facts that it appeared to be a letter addressed to the defendant, that it included the defendant's actual account number at the bank, that the victim testified that it was received by him precisely as he was seeking the amount indicated in the letter to be returned to him by the defendant, and that it might have served the defendant's purpose by assuaging the victim's concerns about whether he would in fact receive that money, are sufficient to support, even though they may not compel, a conclusion by a preponderance of the evidence that this document was sent by the defendant to the victim as an attachment to an e-mail.
The defendant argues next that the testimony by the victim, essential to the admissibility of the document, that it was received as an attachment to an e-mail from the defendant is inadmissible in the absence of an original or a copy of the email itself. The defendant claims this was a failure to comply with the best evidence rule. Specifically, the defendant argues that "any evidence of an email from [the defendant] to [the victim] to which the [bank] letter was attached should have been precluded in the absence of a copy of the email itself ...."
The best evidence rule, however, applies only where the contents of a document are to be proved. See Commonwealth v. O'Casio, 434 Mass. 1, 6 (2001). Here, though, there was no testimony about the contents of the e-mail to which the document was attached, nor was any inference required about what, if anything, the e-mail contained. The victim's testimony about the e-mail was merely that he received it with the fake bank letter attached. Because the testimony about this fact has nothing to do with the contents of the e-mail, the best evidence rule, and its requirement that an original or a reliable duplicate of a writing be produced to prove its content, is inapplicable.
Finally, the defendant argues that because the fake letter should not have been admitted, the testimony of the bank employee was irrelevant to any issue in the case. In concluding that there was no error in admitting the document, we have eliminated the premise of the defendant's argument. And, of course, in the circumstances, as described in the text above, the bank employee's testimony was relevant to whether the defendant acted with larcenous intent.
Judgment affirmed.