United States District Court, D. Rhode Island
J. McConnell, Jr. United States District Judge.
case requires the Court to decide the issue of the
admissibility of evidence of the Defendant's prior
criminal conduct under Federal Rules of Evidence 404(b) and
government has charged Hasan Hussain with one count of
conspiracy to commit wire fraud, five counts of wire fraud,
and eight counts of aggravated identity theft. It alleges
that Mr. Hussain fraudulently obtained fourteen properties in
Rhode Island through an elaborate mortgage fraud scheme. The
government seeks to introduce certain documents-his judgment
of conviction and portions of his change of plea colloquy
transcript-from Mr. Hussain's 2005 conviction for
mortgage fraud and conspiracy in Massachusetts. Mr. Hussain
admitted at his 2005 change of plea hearing that he
"participated in a scheme to defraud the true owners of
various parcels of real property by obtaining by fraudulent
means ownership and control of that real property" and
that he "created false and fraudulent deeds purporting
to convey interests in real property and caused those deeds
to be recorded." ECF No. 54-1 at 3.
Hussain has filed a Motion to Preclude evidence of his prior
conviction. ECF No. 53. He claims that the evidence is not
admissible under Federal Rule of Evidence 404(b)(1), which
provides that "[e]vidence of a crime, wrong, or other
act is not admissible to prove a person's character in
order to show that on a particular occasion the person acted
in accordance with the character." He also argues that,
even if the evidence were admissible, it should be excluded
under Federal Rule of Evidence 403, which provides that
"[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of .
. . unfair prejudice."
government responds by claiming that the 2005 conviction
evidence is "inextricably intertwined with the mortgage
fraud" set forth in the 2017 indictment, and
alternatively, that the 2005 conviction is admissible under
Rule 404(b)(2), ECF No. 54 at 1. That rule allows evidence
inadmissible under Rule 404(b)(1) to be admitted "for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident." The government concludes by
asserting that Rule 403 does not prohibit it from introducing
the evidence because "its probative value is high and is
not substantially outweighed by the possibility of unfair
prejudice." ECF No. 54 at 1.
Court begins by addressing the admissibility of the evidence
under Rule 404(b). To admit evidence of a prior bad act under
this Rule, the evidence must pass two tests:
First, the evidence must have "special relevance"
to an issue in the case such, as intent or knowledge, and
must not include "bad character or propensity as a
necessary link in the inferential chain." Second, under
Rule 403, evidence that is specially relevant may still be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.
United States v. Varoudakis, 233 F.3d 113, 118 (1st
Cir. 2000) (quoting United States v. Frankhauser, 80
F.3d 641, 648 (1st Cir. 1996)).
Special Relevance under Rule 404(b)
government argues the "special relevance" of the
prior conviction is that it shows Mr. Hussain's
"intent to engage in the charged conspiracy, . . . his
knowledge of the scheme's operation and fraudulent
nature, and eliminates any doubt that his participation was
unintentional." ECF No. 54 at 10.
government charged Mr. Hussain in a 14-count indictment
alleging conspiracy to commit wire fraud, wire fraud, and
aggravated identity theft arising from mortgage fraud.
Knowledge and intent are relevant elements of each of the
charges. See, e.g., 18 U.S.C. § 1343 (wire
fraud) ("Whoever, having devised or intending to devise
any scheme ... to defraud, or for obtaining money or property
by means of false or fraudulent pretenses . . . ."); 18
U.S.C. § 1028 (identity theft) ("Whoever . . .
knowingly and without lawful authority produces an
identification document, authentication feature, or a false
identification document . . . .").
Hussain's attorney informed the Court at oral argument on
this motion that he intends to contest the intent element at
THE COURT: [L]et me ask you more directly. At the current
time, do you have plans to challenge that Mr. Hussain had the