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Name: People v. Smith
Case #: B212368
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 11/25/2009

Writings may be authenticated by circumstantial evidence, content, and location, and are not necessarily hearsay if introduced as probative of intent. Appellant was charged with numerous counts of grand theft, sale of unqualified securities, use of false statements to sell securities, and one count of a scheme to defraud in connection with the sale of securities. The prosecution advanced a theory that appellant was operating a Ponzi scheme whereby he solicited money from investors with promises of unreasonably large returns from investments but that any returns paid out came only from the investments of new investors and not from legitimate investments. Only 8 victims testified and counts pertaining to the remaining 25 victims were dismissed. However, the court permitted the prosecution to introduce an exhibit prepared by a fraud investigator with the Los Angeles County Sheriff’s Department that summarized thousands of investment contracts seized in the search of appellant’s offices. The court rejected appellant’s argument that the exhibit was not properly authenticated and was impermissible hearsay. Circumstantial evidence provided the authentication that the exhibit was what it purported to be – the listed contracts were found in appellant’s offices, intermingled with the contracts of the testifying victims; the pre-printed portions were identical to the documents authenticated by the testifying witness; they were either signed by appellant or his designated agents. This circumstantial evidence was sufficient to establish that the documents were agreements between third parties and appellant. The exhibit was not impermissible hearsay because they were not offered for the truth of the contents but were offered as probative of appellant’s intent to defraud and to explain how a Ponzi scheme operates.