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United States v. Hussain

United States District Court, D. Rhode Island

August 3, 2018

UNITED STATES OF AMERICA,
v.
HASAN HUSSAIN, Defendant.

          ORDER

          John J. McConnell, Jr. United States District Judge.

         This 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 403.

         The 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.

         Mr. 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."

         The 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.

         The Court begins by addressing the admissibility of the evidence under Rule 404(b).[1] 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)).

         A. Special Relevance under Rule 404(b)

         The 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.

         The 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 . . . .").

         Mr. Hussain's attorney informed the Court at oral argument on this motion that he intends to contest the intent element at trial:

THE COURT: [L]et me ask you more directly. At the current time, do you have plans to challenge that Mr. Hussain had the ...

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