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Transcript of Don Frank
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA : : CRIMINAL INDICTMENT
v. : : NO. 1:10-CR-134-WSD
DONALD E. FRANK :
GOVERNMENT'S MOTION IN LIMINE TO EXCLUDEHEARSAY AND EXTRINSIC EVIDENCE OF RECORDED STATEMENT AND RECORDS AND VIDEOTAPE OF PURPORTED INSURANCE FRAUD
Comes now the United States of America, by Sally Quillian
Yates, United States Attorney for the Northern District of Georgia,
and Assistant United States Attorneys Susan Coppedge and
Christopher C. Bly, and files this “Government’s Motion in Limine
to Exclude Hearsay and Extrinsic Evidence of Recorded Statement and
Records and Videotape of Purported Insurance Fraud.”
I. PRELIMINARY STATEMENT
On May 18, 2010, defendant Donald E. Frank was indicted in a
Superseding indictment along with defendant Amin Budhwani. (Doc.
14). Both men were indicted on two counts each of bribery in
violation of 18 U.S.C. § 666, with defendant Frank indicted for
accepting two bribes involving something of value of $5,000 or
more, while being a Deputy Chief of Police with the DeKalb County
Police Department. On June 1, 2010, co-defendant Amin Budhwani
pled guilty to one count of corruptly bribing defendant Frank.
(Doc. 38). On September 21, 2010, the indictment was superseded to
Case 1:10-cr-00134-WSD-LTW Document 68 Filed 01/12/11 Page 1 of 9
add three additional counts against defendant Frank of receiving
bribes in violation of 18 U.S.C. § 666. (Doc. 55).
II. FACTUAL BACKGROUND
A. Burglary and Insurance Claim for Budhwani’s Residence
Prior to the FBI investigation, the DeKalb County Police
Department conducted investigations into defendant Frank and co-
defendant Amin Budhwani. DeKalb’s investigation of Budhwani
included several recordings and documents pertaining to a burglary
incident at Budhwani’s home, at 4627 Briarcliff Road, for which
Budhwani filed a claim with his insurance company, Travelers
Insurance. Out of an abundance of caution, the government provided
in discovery all of DeKalb’s records of their investigation into
potential insurance fraud committed by Budhwani. The burglary
occurred during a weekend in early June 2008, before the time
period of activities alleged in the Second Superceding Indictment.
Budhwani initially contacted a friend of his, Lt. Darren Durrett
with DeKalb County Police, when he first discovered the burglary.
There is no evidence Budhwani knew defendant Frank at the time of
the burglary.
A summary of the recordings produced to defense in this case
follows:
-- Rec-6 and Rec-7 contain DeKalb County Police
Officer radio traffic of Officer Myers pertaining to the
burglary at Budhwani’s home.
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Case 1:10-cr-00134-WSD-LTW Document 68 Filed 01/12/11 Page 2 of 9
-- Rec-12 and Rec-15 are identical copies of an
interview conducted by DeKalb County Police Detectives
Oak and Stanfield of landscape contractor Chad Geller (or
Keller). The subject of the interview is the insurance
claim.
–- Rec-13 and Rec-14 are an excerpt from and the
full recording of DeKalb County Police Detectives Oak and
Stanfield interviewing Officer Myers regarding the
burglary report.
-- Rec-17 is a DVD video recording of a March 2009
search warrant for the inspection of co-defendant
Budhwani’s home and water fountain.
The Government also provided records that Travelers Insurance gave
to DeKalb. (Bates range TRVLR 00001-00858). Contained in these
records is a deposition of Budhwani taken by Travelers on September
18, 2008. (TRVLR-00420-00527). The deposition contains
information about Budhwani’s finances, his assets and the amount of
money he spent on the home that was the subject of the insurance
claim.
A key fact for the Court’s consideration is that no finding of
fraud was ever made, no criminal case was brought against Budhwani
by DeKalb, and Travelers Insurance ultimately paid on the insurance
claim. Additionally, there is no alleged involvement of defendant
Frank in any of these matters. The government expects the evidence
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to be that Lt. Durrett introduced defendant Frank to Budhwani
sometime in October 2008.
B. Initial Encounter with expected Witness Imran Chaudhry
Another matter for which a recording was provided in discovery
to defense counsel is the initial encounter with Imran Chaudhry, a
witness the government plans to call at trial. This recording was
made on July 31, 2009, and produced to defense on CD, Rec-021. The
recording captures the first meeting with Detectives Oak and
Stanfield and Officer Boyd of the DeKalb County Police Department,
Immigration and Customs Enforcement Agents Heerlin and Clark, and
witness Imran Chaudhry. To summarize this recording, it is law
enforcement’s attempt to question Mr. Chaudhry about the incident
with defendants Frank and Budhwani and have him cooperate in the
investigation. Mr. Chaudhry is initially leery of law enforcement
and does not want to cooperate. The recording does not contain any
substantive statements from Mr. Chaudhry. The interview pertaining
to what actually happened is the subject of a later recording on
the same day, conducted by Detectives Oak and Stanfield at a hotel,
and produced on Rec-020.
The initial July 31, 2009 audio recording of Mr. Chaudhry (Rec
-21) and the recordings regarding the insurance claim (Rec-6, 7,
12, 13, 14, 15, and 17 (video)) and any documentary evidence
regarding the insurance incident are statements which are
inadmissible hearsay, not relevant, and/or more prejudicial than
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probative. Thus, the government now moves the Court to preclude
the defendant from admitting said evidence during trial.
III. LEGAL DISCUSSION
The Court should preclude the defendant from attempting to
admit evidence pertaining to the insurance claim and the recording
of the initial encounter with Mr. Chaudhry on July 31, 2009 as they
contain hearsay testimony. Hearsay is defined as “a statement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801.1
Additionally, the Court should preclude defendant from
inquiring into the insurance investigation conducted on Budhwani’s
claim with Travelers for damage to his property as such evidence is
not relevant. Fed. R. Evid. 401. Lastly, such evidence of the
existence of the insurance investigation would be more prejudicial
than probative. Fed. R. Evid. 403. The insurance claim was filed
before Budhwani knew defendant Frank and there is no evidence that
defendant Frank had anything to do with the Travelers matter.
Ultimately, the insurance claim filed by Budhwani was determined to
be valid and paid by Travelers. Thus, the fact that the claim was
investigated by both the insurance company, as no doubt many
insurance claims are, and DeKalb County is not relevant. As an
1The government is permitted to introduce the defendant’sstatements as non-hearsay admissions by a party opponent. SeeFed. R. Evid. 801(d)(2).
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analogy, case law is clear that inquiry into the existence of an
arrest is not admissible to impeach under Fed. R. Evid. 608(b).
United States v. Abadie, 879 F.2d 1260, 1267 (5th Cir. 1989)(citing
United States v. Newman, 849 F.2d 156, 161 (5th Cir. 1988); United
States v. Labarbera, 581 F.2d 107, 108-09 (5th Cir. 1978); United
States v. Garcia, 531 F.2d 1303, 1306 (5th Cir. 1976)). Thus, the
existence of an insurance investigation should not be admissible.2
In addition, evidence of the insurance investigation should be
precluded under Rule 403, as the parties may end up litigating in
the instant trial an insurance matter that was ultimately paid.
Such a line of inquiry would cause unfair prejudice, mislead the
jury, and waste time. Any probative value such evidence might have
would be outweighed by the unfair prejudice of implying that
Budhwani’s claim was not valid when, in fact, the insurance company
paid on the claim. “[T]he district court is uniquely situated to
make nuanced judgments on questions that require the careful
balancing of fact-specific concepts like probativeness and
prejudice, and we are loathe to disturb the sound exercise of its
discretion in these areas.” United States v. Jernigan, 341 F.3d
1273, 1285 (11th Cir. 2003). In addition, any evidence of the
insurance investigation and ultimate payout would delay the trial
2Evidence pertaining to the insurance investigation would beextrinsic and not admissible under Fed. R. Evid. 608(b). Seealso United States v. Matthews, 168 F.3d 1234, 1243-44 (11th Cir.1999).
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and waste the Court’s time on a tangential matter. For all of
these reasons, the Court should preclude the defense from inquiring
into the civil insurance investigation by Travelers or the
investigation by DeKalb County.
The government now asks the Court to exclude inquiry into this
civil matter as it is not admissible under either Fed. R. Evid. 801
or 401. Further, the probative value of any of this evidence is
substantially outweighed by its potential for unfair prejudice,
confusion of the issues, and wasting time. Fed. R. Evid. 403. The
Court should preclude any reference to the civil insurance matter
or DeKalb’s investigation at trial.
CONCLUSION
Therefore, because of the aforementioned reasons, the Court
should preclude defendant Donald Frank from introducing (1) the
July 31, 2009 recording of the initial contact with Imran Chaudhry,
and (2) any audio recordings, video tape of Budhwani’s property,
and any documents, testimony or evidence pertaining to a purported
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insurance fraud investigation since this evidence would constitute
inadmissible hearsay, would not be relevant, and would be more
prejudicial than probative.
Respectfully submitted,
SALLY QUILLIAN YATESUNITED STATES ATTORNEY
/s/ SUSAN COPPEDGEASSISTANT U. S. ATTORNEYGeorgia Bar No. [email protected]
/s/ CHRISTOPHER C. BLYASSISTANT U. S. ATTORNEYGeorgia Bar No. [email protected]
600 U.S. Courthouse75 Spring St., S.W.Atlanta, GA 30303(404)581-6000
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CERTIFICATE OF SERVICE
This is to certify that I have this day served upon the
persons listed below a copy of the foregoing document
electronically:
Bruce Morris
Brian Steel
This 12th day of January, 2010.
/S/CHRISTOPHER C. BLYASSISTANT UNITED STATES [email protected]
Case 1:10-cr-00134-WSD-LTW Document 68 Filed 01/12/11 Page 9 of 9