It was unclear at the outset of the second day of trial for a check fraud case if the defendant would testify, but he ultimately chose to do so — albeit under unusually limited circumstances.
In addition to a felony count of check fraud, Hassen Dagher, 46, also is charged with exploitation of a protected party, as the owner of the property at the heart of a more-than-year-old rental dispute is older than 70. Specifically, the prosecution alleges that Dagher misrepresented himself as a working doctor to Tom Peckham, who in turn chose Dagher as a tenant over other interested prospects.
But Dagher, who has been the subject of two separate cease-and-desist orders from the Colorado Medical Board for falsely representing his credentials, insisted that he is technically a doctor and was willing to attest to that fact on the stand. As for other factors in the case, not so much.
“My decision will be dependent on what happens with the next witness,” Dagher told Pitkin County District Judge Chris Seldin when asked after being given additional time to confer with defense attorney Laura Menninger if the jury would be hearing from him.
“So your decision as to whether you will testify or remain silent will depend on the testimony we hear from the next witness?” Seldin clarified.
“Yes,” he said flatly.
At that point, Menninger jumped in to shed further light on the motivations behind her client’s choice.
“I had a document to admit [as evidence]. It is a stamped and sealed copy of Mr. Dagher’s Educational Commission for Foreign Medical Graduates, [or ECFMG], which shows that he has met the qualifications essentially of a foreign graduate to practice in the U.S.,” she said. “Depending on your honor’s ruling on that, I may or may not put Mr. Dagher on the stand to say that and admit that record. I believe that if he did that, it’s my advice to him that any cross-examination would be limited to the one or two questions that were presented to him.”
At that, Menninger presented the ECFMG certificate. The Philadelphia-based nonprofit “was founded in 1956 to assess, through a program of certification, whether international medical graduates are ready to enter residency or fellowship programs in the United States that are accredited by the Accreditation Council for Graduate Medical Education,” according to the organization’s website.
ECFMG certification also is an eligibility requirement for graduates to take the third and final step of the United States Medical Licensing Examination, recommended to be taken after at least one year of post-medical school training by the administering agency.
Dagher has not yet completed any such residencies, a fact that came out during the very limited cross-examination, per Menninger’s requested and granted framework for her client’s testimony.
“[Dagher] of course does not have a prior felony; I understand that opens you up to credibility if that were the case, but he has no criminal history, so I’m letting your honor know that as it bears on your honor’s instructions to him with respect to his right to testify that there is this limiting cross-examination based on scope of the direct [line of questions],” she told Seldin.
Deputy District Attorney Don Nottingham objected, acknowledging Dagher’s reasons for wanting to testify to his technically having graduated from medical school and thus having a doctorate degree.
“What he is going to be doing is testifying that he wasn’t deceiving anyone when he said, ‘Call me doctor’ or to refer to him by doctor. That will be the reason he would be saying that. The fact of him having a medical degree or not is only relevant as to how he used the word doctor and whether or not that’s deception,” Nottingham said. “I think I would have the opportunity to cross-examine him on the other reasons why he may or may not have said doctor vs an MD vs a licensed doctor vs a physician.”
Ultimately, though, Nottingham didn’t have that opportunity. In her questioning of her client, Menninger established that Dagher graduated from St. Matthew’s Medical School, a for-profit university in the Cayman Islands, in 2015. She further established that in order to earn the ECFMG certificate, Dagher had to complete the requirements established by the organization and that the document he brought into the courtroom was the original.
“No further questions,” Menninger concluded.
Menninger objected twice during Nottingham’s cross-examination of her client, both times arguing that his questions exceeded the scope of the direct testimony, and one of those objections was sustained — regarding Nottingham asking Dagher, “When you talk to people about what you do for a living, what do you tell them?”
That question came after Dagher confirmed that while the ECFMG technically made him a doctor, it did not make him a doctor licensed to practice medicine unsupervised anywhere in the United States.
“Does that document make you a doctor?” he posed.
“Yes,” Dagher replied.
“Do you have a license to practice medicine?”
“Anywhere?” Nottingham prodded.
When Dagher repeated “no,” he pushed a little further.
“So not in Michigan?” he asked.
“No,” Dagher said.
That answer countered what he’d allegedly told Peckham during their interactions leading up to Peckham renting his efficiency unit at the base of Aspen Mountain to Dagher. In Peckham’s testimony earlier that day, he said that when it came up in conversation that Dagher was not actually licensed to practice medicine in Colorado, he told Peckham that he was licensed in Michigan.
“It was then that I first learned that he did not yet have a Colorado license, but he said in the same sentence, ‘My license is in Michigan. My practice is in Michigan, and I’m working with this doctor in Aspen’ and implied I guess that he was in the process of getting a Colorado license but hadn’t gotten one yet,” Peckham told Menninger during her cross-examination of him.
That revelation allegedly occurred either as Dagher was signing or had just signed a lease to rent Peckham’s unit; the now 77-year-old couldn’t remember exactly. Still, Dagher had written Peckham a check for $2,950, representing first and last month’s rent. Dagher allegedly assured him he would deposit the additional security deposit owed directly into Peckham’s Wells Fargo account so that Peckham could return home to Connecticut.
“I put that in a separate trust account for the tenant. That’s not my money; it belongs to the tenant,” Peckham said.
That deposit never came, and the check Dagher wrote bounced twice. The lease Dagher signed began July 1, 2018; he left the premises in October of that year, according to Peckham. During that time, Dagher allegedly paid Peckham $945 total.
But the case doesn’t come down to whether Dagher paid Peckham; it comes down to whether Dagher acted with intent to defraud Peckham, the defense argued several times. And Dagher has repeatedly said he never intended to defraud anyone, as the jury witnessed in a video via an Aspen police body camera during an interview between the arresting officer and Dagher, in which Dagher says as much.
The prosecution’s duty, then, is to prove beyond a reasonable doubt to the jury that Dagher in fact acted knowingly when he wrote the check to Peckham that he did not have sufficient funds in his account to cover the amount. Bank statements showed that in the month of July, the account from which Dagher wrote the check never had a balance that exceeded $200. The prosecution’s other burden is to prove that by falsely representing his medical career, Dagher knowingly deceived Peckham.
Seldin ruled that a reasonable juror could conclude that the prosecution’s allegations are sound based on the evidence and so denied Menninger’s motion mid-afternoon to acquit her client of both charges.
In a technicality discovered after the jury had recessed for the evening, Menninger failed to “say the magic incantation” to officially admit Dagher’s ECFMG as an official exhibit, which will be the first order of business Friday morning when the trial continues. Nottingham, for his part, plans to object on hearsay.
Regardless of that outcome, however, a verdict is expected Friday.