UNITED STATES v. HUSSAIN (2024)

ORDER ON MOTIONS IN LIMINE

This order provides rulings on the defendant Nasir Hussain's evidentiary motions in limine. This case concerns an alleged wire fraud conspiracy.¹ As part of the conspiracy, Hussain allegedly opened bank accounts to receive victim funds, directed others to open similar bank accounts, received funds, and transferred funds to accounts in India.² Ahead of the jury trial on one count of conspiracy to commit wire fraud, Hussain filed four motions in limine to exclude a variety of evidence. The motions are reasonable, and counsel have undertaken to work collaboratively (where appropriate) to resolve several issues by agreement.

These rulings are made without prejudice to revisiting particular issues in response to circumstances that might arise during trial. Furthermore, these rulings are limited to grounds argued in the parties’ filings and discussed at the final pretrial conference. The court reserves the right to assess other factors at trial, such as hearsay, authenticity, and best evidence, see Fed. R. Evid. 801 et seq., 901 et seq., and 1001 et seq., and where appropriate, arguments and grounds not raised by each side. In every instance below where the court found evidence to be admissible under the rules pertaining to relevance, see Fed. R. Evid. 401 et seq., or witnesses, see Fed. R. Evid. 601 et seq., it has determined that its relevance and probative value are not outweighed by a danger of unfair prejudice, confusion, misleading the jury, undue delay, wasting time, or cumulation. See Fed. R. Evid. 403. To the extent the court here rules that evidence may be admitted for a limited purpose, see Fed. R. Evid. 105, it will give the jury a limiting instruction upon the request of counsel at trial.

Defendant's post-arrest interview

Hussain seeks to exclude portions of ten separate audio files containing excerpts of a federal agent's post-arrest interview of Hussain. Hussain claims that portions of these exhibits contain hearsay statements,³ as the federal agent describes and recounts statements from other people.⁴ See Fed. R. Evid. 801. The prosecution argues that the court may admit the agent's statements as completing context for Hussain's answers, not for the truth of the information in the agent's questions. See Fed. R. Evid. 105 (limited purpose evidence), 106 (rule of completeness).

Interview transcripts and recordings present familiar problems. The defendant's answers are of course admissible as non-hearsay statements under Rule 801(d)(2)(A). Embedded within the federal agents’ questions, however, are assertions, assumptions, and statements of third parties, many of which would constitute hearsay or double hearsay if admitted. See Fed. R. Evid. 801, 802, 805. Those assertions, assumptions, and statements within questions must be excluded, see Fed. R. Evid. 802, or appropriately limited, see Fed. R. Evid. 105, 106.

If a given answer may be understood by the jury without the hearsay embedded in the question, the prosecution is directed to edit or redact the video recordings to eliminate the offending hearsay.

If the answer may not be understood without the assertion, assumption, or statement incorporated into the questions eliciting the defendant's answers, the information within the questions will not be admitted for its truth, which would constitute inadmissible hearsay, see Fed. R. Evid. 801 802, but rather to provide context for, and enable understanding of, the defendant's answer(s). See Fed. R. Evid. 105, 106. In such instances, the court will give a limiting instruction to the jury, see Fed. R. Evid. 105, unless defense counsel specifically requests that the court forego the limiting instruction, as a matter of defense strategy or tactics, in order to avoid emphasizing the evidence to the jury. See Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 199 F.R.D. 487, 489 (E.D.N.Y. 2001). Any proposed limiting instructions suggested by defense counsel will be given full consideration.

The motion ⁵ is thus granted in part and denied in part in accordance with the rulings above.

Speculative testimony

Hussain seeks to exclude speculative testimony from alleged co-conspirators about the nature of the alleged scheme to defraud. Particularly, the government may attempt to introduce witnesses who may testify on the defendant's state of mind regarding the underlying scheme or their personal suspicions that the funds were obtained fraudulently. The prosecution argues that the defendant's motion is premature and that it will provide a proper foundation for evidence from alleged co-conspirator witnesses.

Witnesses may testify about the defendant's statements, which are not hearsay under Fed. R. Evid. 801(d)(2), regarding any and all matters relevant at trial, including the purpose of the alleged scheme. But witnesses may not testify about matters and events about which they lack personal knowledge, see Fed. R. Evid. 601, 602, including the defendant's unarticulated and unexpressed objective motives and intentions. They also cannot testify about their subjective motives or opinions that would be otherwise inadmissible or unduly prejudicial. See Fed. R. Evid. 403.

The motion ⁶ is therefore granted as to witnesses’ personal subjective opinions about the defendant's unstated or unexpressed intentions or motives.

Victim impact testimony

Hussain seeks to seeks to exclude testimony from alleged victims regarding the financial and emotional impact of their losses (beyond the amounts of the loss). He argues that the testimony is not relevant, and if it were, the prejudicial effect of such testimony would far outweigh its relevance because it would have the tendency to engender outrage against Hussain for reasons unrelated to the elements of the charge. The prosecution responds that it does not intend to elicit “traditional [ ] victim impact testimony,” but may elicit testimony that, for example, “the conspirators took all the money in a particular bank account to which they fraudulently obtained access.”⁷

The prosecution's response assures the defendant and the court that it will not elicit “traditional victim impact testimony” of the sort customarily presented at sentencing, such as emotional distress, deprived economic opportunities, or impact on family or life activities. Such evidence would hold little relevance, and the resulting prejudice would likely substantially outweigh its probative value. See United States v. Brooks, No. 06-CR-550(S-1)(JS), 2010 WL 11515680, at *2 (E.D.N.Y. Jan. 25, 2010) (holding that the probative value of testimony about “impact” of alleged fraud on victims’ lives is “substantially outweighed by the ‘danger of unfair prejudice’ ” and “may mislead the jury to declare guilt on a ‘ground different from [the] proof specific to the offense charged.’ ”) (quoting Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)); Fed. R. Evid. 403.

As agreed by the parties at the final pre-trial conference, witnesses may testify about the amount lost to the alleged conspiracy, and to a limited extent about their backgrounds or life circumstances. The motion ⁸ is granted, largely by agreement.

Immigration status

Hussain seeks to exclude any argument or evidence regarding his immigration status. Specifically, Hussain seeks to exclude evidence or argument regarding recently obtained charges against him for allegedly making a false statement in connection with a citizenship application, or evidence concerning his immigration status more generally. Hussain, a citizen of India, concedes that the fact that he is in the United States under the terms of an Exchange Visitors Program (J-1) visa is relevant, and does not object to evidence about that fact specifically.

The prosecution states that it does not intend to present immigration evidence in its case-in-chief beyond the fact that Hussain first came to the United States from India on a J-1 visa.⁹ The parties agree that evidence regarding Hussain's immigration status is not otherwise relevant.

Should Hussain testify during trial, however, the prosecution intends to inquire on cross-examination about allegedly false statements made on his application for Legal Permanent Residency. The court may allow such specific instances of conduct to be inquired into if it deems them probative of a witness's character for truthfulness, Fed. R. Evid. 608(b), which seems likely if the proffered instances of conduct do not otherwise require exclusion under Rule 403. Should the prosecution establish a good faith basis to impeach Hussain's credibility with information concerning his allegedly false statements, the court will allow it. The court will provide limiting instruction if requested. Fed. R. Evid. 105. As Rule 608 does not permit the introduction of extrinsic evidence of these credibility-related instances of conduct, barring any unforeseen circumstances, the court will not allow its admission, regardless of Hussain's answers. Fed. R. Evid. 608(b).

The motion ¹⁰ is thus granted in part and denied in part.

SO ORDERED.

FOOTNOTES

1.   Superseding Indictment (doc. no. 93) at ¶¶ 1-2.

2.   Id. at ¶¶ 5-7.

3.   Although the audio files have not yet been marked, the defendant states that, at some points in the interview, the agent shows the defendant unidentified documents and tells him what these documents show. The defendant claims these documents are inadmissible hearsay.

4.   For example, the defense writes, the questioning agent states that other people have told the agent that Hussain is the “boss.”

5.   Doc. no. 178.

6.   Doc. no. 179.

7.   Opp'n. Mot. Lim. (doc. no. 184), at 1.

8.   Doc. no. 180.

9.   Opp'n. Mot. Lim. (doc. no. 185), at 1.

10.   Doc. no. 181.

Joseph N. Laplante, United States District Judge