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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ____________________________________________ UNITED STATES OF AMERICA v. HUSSAIN KAMAL

No. 3:10-CR-159-D ECF

GOVERNMENTS NOTICE OF INTENT TO INTRODUCE EVIDENCE UNDER FRE 404(b) Out of an abundance of caution, the United States Attorney for the Northern District of Texas, by and through the undersigned Assistant United States Attorney, files this notice of intent to introduce evidence of uncharged misconduct under Federal Rule of Evidence 404(b). However, the government believes that the evidence outlined below is inextricably intertwined with the charged offense and, thus, is admissible under Federal Rule of Evidence 402. In addition, the government reserves the right to make further disclosures at a later date, in the event that additional misconduct on the part of the defendant is discovered. FACTUAL BACKGROUND In May 2008, the defendant, then age 49, initiated communication via Yahoo! (chat) with an individual whom he believed to be a 14-year old girl named Devin from Greenville, Texas, but who was in fact an adult working with the citizen group

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Perverted Justice.1 From May 20, 2008 through July 4, 2008, the defendant chatted with Devin via Yahoo! on multiple occasions. Many of the chats were of a sexual nature, in which the defendant suggested, among other things, that they engage in love making and/or oral sexual intercourse, that she masturbate, and that they take pictures of each other from the neck down (no faces showing). Eventually, the defendant and Devin agreed that on July 5, 2008, he would come to Greenville, Texas (on his way back to San Antonio from Ohio) and meet her at a local movie theater. Unbeknownst to the defendant, Devin had contacted the Greenville Police Department about him, forwarded them her chat logs with him, and informed them about the date and time of their meeting. As scheduled, on July 5, 2008, the defendant arrived at the agreed-upon movie theater. The officers of the Greenville Police Department were waiting for him, and they arrested him after he parked at the designated meeting place. In the defendants car, police found gas receipts documenting his travel from Ohio to Texas, a laptop computer, external hard drive, Trojan condoms, a prescription pill bottle containing Viagra, a digital camera, and a Dale Ernhardt teddy bear. A forensic analysis of the computer media revealed the defendants external hard drive contained images of what appeared to be teen pornography (not confirmed child pornography), and Yahoo! chats with others, including an individual who claimed to be a 16-year old girl named Candi. A federal grand jury indicted the defendant charging him with Count One:
1

Perverted Justice is a citizen group dedicated to protecting children from sexual predators.

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Enticement of a Minor, in violation of 18 U.S.C. 2422(b), and Count Two: Travel with Intent to Engage in Illicit Sexual Conduct, in violation of 18 U.S.C. 2423(b). NOTICE Among the elements the government must prove beyond a reasonable doubt are: (1) that the defendant knowingly attempted to persuade, induce or entice an individual whom he believed to be under the age of 18 years to engage in any sexual activity for which any person can be charged with a criminal offense (an element of Count One of the indictment), and (2) that the defendants purpose in traveling in interstate commerce was to engage in illicit sexual conduct with a minor (an element of Count Two of the indictment). See Governments Proposed Jury Instructions. Accordingly, the government intends to introduce the following evidence and/or testimony to establish proof of motive, intent, preparation, plan, knowledge, identity, and absence of mistake or accident under Rule 404(b): On a date between 2005 and March 2008, the defendant, using Yahoo!, initiated and engaged in a flirtatious and sexually suggestive chat with an individual named Candi who purported to be age 16 from Texas. The government intends to introduce the entire chat text, which is approximately 5 pages. The defendant possessed nude, lewd and lascivious images of a young female (age unknown) bearing file names beginning with sexy-teen on the external hard drive seized from him on July 5, 2008.

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ADMISSIBILITY Evidence of a defendants prior wrongful acts is admissible if it is (1) relevant to an issue other than the defendants character; and (2) the incremental probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). The acts as outlined above are admissible under the Beechum test. First, the evidence of the defendants prior sexual interest in under-aged girls is highly relevant to prove his motive, preparation, and intent to persuade and entice Devin to engage in sex acts with him and to show that his purpose in traveling to meet Devin was to do so, as charged. Second, the above-described evidence is highly probative because the defendants intent is the critical issue of the case. The defendants proposed jury instructions indicate he intends to assert an entrapment defense. See Defendants Proposed Jury Instructions. The defendants predisposition to contacting and befriending minor girls, and his sexual attraction to minors is, therefore, key. Further, it is well established that the typical method by which anyone can determine another persons intent is by examining the circumstances surrounding their actions. See Devitt and Blackmar, Federal Jury Practice and Instructions, 3rd Edition, 14.13; United States v. Chiantese, 560 F.2d 1244, (5th Cir. 1977) (en banc). The best way by which a jury can determine, beyond a reasonable doubt, whether the defendant intended to have sexual contact with a 14-year old girl is to review those prior actions and statements by the defendant that reveal the context and motivation for his charged conduct.
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Finally, the danger of unfair prejudice is very low because the Court may instruct the jury that the testimony or evidence concerning these other acts may only be considered for a limited purpose. And, the evidence, which is of a similar nature and tenor to the charged offenses, will be no more shocking or prejudicial to the jury than the charged conduct itself. Therefore, as it relates to the second part of the Beechum test, the highly probative value of this evidence is not substantially outweighed by the danger of unfair prejudice. Accordingly, admission of extrinsic evidence is proper under Rule 404(b). CONCLUSION In sum, the government provides its notice to the defendant that it intends to offer the above-described evidence as proof of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident under Rule 404(b).

Respectfully submitted, JAMES T. JACKS UNITED STATES ATTORNEY s/Lisa J. Miller LISA J. MILLER Assistant United States Attorney Oklahoma State Bar No. 16795 1100 Commerce Street, Third Floor Dallas, Texas 75242 Telephone: 214.659.8615 Facsimile: 214.767.2846 Email: lisa.miller@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on February 8, 2011, I electronically filed the foregoing document with the Clerk of Court for the United States District Court, Northern District of Texas, using the electronic case filing system of the Court. The electronic case filing system sent a Notice of Electronic Filing to the following attorney(s) of record who have consented in writing to accept this Notice as service of this document by electronic means: Doug Morris. s/Lisa J. Miller LISA J. MILLER Assistant United States Attorney

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