The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
The Government makes two motions in limine, one regarding the possible questioning of Defendant Ghulam Mesbahuddin ("Mesbahuddin") in connection with his prior conviction (1st Mot. in Limine (Docket Entry # 33)), and one regarding the admission of evidence regarding uncharged misconduct allegedly committed by Mesbahuddin (2d Mot. in Limine (Docket Entry # 36)). For the reasons set forth below, the Government's motions are granted.
Mesbahuddin is charged, in the Second Superseding Indictment (Docket Entry # 39), with two counts of criminal conspiracy. In Count One, the Government alleges that, between August 2009 and May 2010, Mesbahuddin conspired to transfer one or more false identification documents, which appeared to be issued by and under the authority of the United States, knowing that those documents were produced without lawful authority, in violation of 18 U.S.C. §§ 1028(a)(2) and 1028(f). (Id. ¶ 1.) The documents in question in Count One are employment authorization documents and Social Security cards. (Id.) In Count Two, the Government alleges that, between August 2009 and May 2010, Mesbahuddin conspired to corruptly give, offer, and agree to give things of value, namely cash payments, to an agent of the California Department of Motor Vehicles with the intent to influence and reward that agent in connection with the issuance of a fraudulent driver's license, in violation of 18 U.S.C. §§ 666(a)(2) and 371. (Id. ¶ 2.)
The Government states that Mesbahuddin, in furtherance of the charged crimes, cooperated with Stan Maynard ("Maynard"). (1st Mot. in Limine at 2-3.) According to the Government, Maynard was charged with recruiting individuals who were interested in obtaining illegal identification documents, and obtaining their passport photos, fingerprints, biographical information, and money. (Id. at 2.) The Government intends to call Maynard to testify against Mesbahuddin. (2d Mot. in Limine at 2.)
In its first motion, which has not been opposed by the defense, the Government seeks, pursuant to Federal Rule of Evidence 609(a), to cross-examine Mesbahuddin, should he choose to testify, regarding his 2005 conviction for attempted bank fraud under 18 U.S.C. § 1344. (1st Mot. in Limine at 1.) According to the Government, Mesbahuddin unsuccessfully attempted to obtain a $100,000 loan from a bank in Queens, New York by using a false identity and a forged driver's license. (Id. at 5.) In addition, the Government seeks to cross-examine Mesbahuddin regarding the underlying facts of the 2005 conviction, should he testify in a manner that contradicts what the Government views as his "true criminal history." (Id.)
In its second motion, the Government seeks to introduce Maynard's testimony that Mesbahuddin, "during the time [he] and Maynard were engaging in" the charged crimes, participated with Maynard in two uncharged conspiracies, one to commit mortgage fraud and one to commit bank fraud. (2d Mot. in Limine at 2, 5.) According the Government, Mesbahuddin and Maynard planned a mortgage fraud scheme, which ultimately did not pan out due to Maynard's poor credit. (Id. at 5.) The bank fraud scheme, which involved passing a false check, was also unsuccessful. (Id. at 5-6.)
A. Motion to Cross-Examine Mesbahuddin Regarding His Prior Conviction
Federal Rule of Evidence 609(a)(2) permits the admission, "[f]or the purpose of attacking the character for truthfulness" of "any witness," of "evidence that [the] witness has been convicted of a crime . . . , if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
Mesbahuddin was convicted in 2005 of attempted bank fraud, in violation of 18 U.S.C. § 1344. Section 1344 requires the government to prove that the defendant used "a scheme or artifice" either (1) "to defraud a financial institution" or (2) to obtain assets from a financial institution "by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. § 1344. To prove that the defendant participated in a "scheme or artifice to defraud" under the statute, the government must show that he "intended to deceive others." United States v. Chacko, 169 F.3d 140, 148 (2d Cir. 1999) (internal quotation marks omitted). Because conviction under § 1344 requires proof of "an act of dishonesty or false statement," the Government, should Mesbahuddin choose to testify, may admit evidence of his 2005 conviction for attempted bank fraud under Rule 609(a)(2). In particular, the Government may, as it requests, cross-examine Mesbahuddin "about certain limited facts regarding his prior felony conviction, specifically the fact that he was convicted in the Eastern District of New York of Attempt to Commit Bank Fraud, a Class B Felony, on September 27, 2005 and was sentenced to probation." (1st Mot. in Limine at 5.)
The Government further moves for permission to cross-examine Mesbahuddin regarding "the underlying facts" of the attempted bank fraud, should he "open the door" by testifying "in a manner that contradicts his criminal history." (Id. at 13.) The Government's motion is granted.
See United States v. Weisser, 417 F.3d 336, 345-46 (2d Cir. 2005) (finding that it was permissible for the government to cross-examine the defendant regarding the circumstances of his prior conviction for child molestation where the defendant "opened the door" by testifying that he was not sexually interested in children); United States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998) ("A defendant has no right to avoid cross-examination into ...