Case 1:10-cr-00134-WSD-LTW Document 68 Filed 01/12/11 Page 1 of 9

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 EXCLUDE

HEARSAY 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 On September 21, 2010, the indictment was superseded to

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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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-- 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

1
The government is permitted to introduce the defendant’s
statements as non-hearsay admissions by a party opponent. See
Fed. 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

2
Evidence pertaining to the insurance investigation would be
extrinsic and not admissible under Fed. R. Evid. 608(b). See
also 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 YATES

UNITED STATES ATTORNEY

/s/ SUSAN COPPEDGE

ASSISTANT U. S. ATTORNEY
Georgia Bar No. 187251
Susan.Coppedge@usdoj.gov

/s/ CHRISTOPHER C. BLY

ASSISTANT U. S. ATTORNEY
Georgia Bar No. 064634
Chris.Bly@usdoj.gov

600 U.S. Courthouse

75 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. BLY
ASSISTANT UNITED STATES ATTORNEY
Chris.Bly@usdoj.gov