Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

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1 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA, : : CRIMINAL INDICTMENT NO.: v. : : 1:10-CR-134-WSD DONALD E. FRANK, : : (Superseding) Defendant. : DEFENDANT DONALD E. FRANK S BRIEF IN OPPOSITION TO THE GOVERNMENT S MOTION IN LIMINE TO EXCLUDE HEARSAY AND EXTRINSIC EVIDENCE OF RECORDED STATEMENT AND RECORDS AND VIDEOTAPE OF PURPORTED INSURANCE FRAUD COMES NOW Defendant, Donald E. Frank, by and through his undersigned counsel, and respectfully files this Brief in Opposition to the Government s Motion in Limine to Exclude Hearsay and Extrinsic Evidence of Recorded Statement and Records and Videotape of Purported Insurance Fraud and respectfully shows the following: In response and opposition to the Government s Motion in Limine (Doc. 68), Defendant respectfully shows that the Government s Motion should be denied as the evidence in question is relevant to important issues in this trial and the admission of such evidence is supported by the applicable law. Burglary and Insurance Claim for Budhwani s Residence Co-Defendant Amin Budhwani pled guilty to Count 4 of the pending indictment on June 1, He will be the Government s chief witness against Defendant Frank in this trial. Budhwani s credibility and truthfulness will therefore be critical issues to be

2 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 2 of 9 considered by the jurors in this case. As such, acts of dishonesty and crimes committed by Budhwani are highly relevant, admissible and material. On or about June 8, 2008, Amin Budhwani complained of an alleged burglary of his home in DeKalb County. He caused the creation and filing of a burglary police report with the DeKalb County Police Department and filed a claim with his insurance company, Traveler s Insurance, in the amount of over $65, As a part of his alleged losses, he represented that an outdoor water fountain with a value of $10, had been stolen. The DeKalb County Police Department conducted an investigation into the alleged burglary of Budhwani s home. The DeKalb Police Investigation concluded: 1. The June 8, 2008 burglary report made by Budhwani reported a $10, water fountain had been stolen; 2. On September 8, 2008, Budhwani testified under oath in a deposition that the water fountain had not been stolen but severely damaged; 3. That landscaper Chad Keller was told by Budhwani to remove the water fountain so that he could claim it had been stolen; 4. During the course of a search of Budhwani s residence on March 12, 2009, the water fountain was located on the property and found to have no damage. The Government argues that the above facts and information are irrelevant to the pending case because the burglary occurred in June 2008 before the time period of activities alleged in the Second Superseding Indictment. (Doc. 68 at 2) and that the insurance claim was filed before Budhwani knew Defendant Frank (Id. at 5). However, the Government fails to note that it possesses other evidence that in fact Budhwani indeed knew Defendant Frank at the time of the burglary and in fact contacted the 2

3 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 3 of 9 Defendant about the burglary, requested his assistance, and may have asked the Defendant to contact a DeKalb County Police Officer to take the burglary report. See Form 302 containing the report of an interview conducted on September 16, 2009 of Amin Budhwani by FBI Special Agent Brian Davis, DeKalb County Detective Stanfield and DeKalb County Detective Oak. For this reason alone, the activities of Budhwani concerning his conduct during June of 2008 is relevant and probative to the issues to be tried in this case. Independent of the factual relevance set forth above, Mr. Budhwani can be questioned during his cross-examination about the circumstances of his false report of this burglary to the DeKalb County Police as well as his solicitation of his landscaper to remove the fountain so that Budhwani could claim it had been stolen. More specifically, Budhwani can be questioned about his filing of a burglary report on June 8, 2008 claiming a water fountain with a value of $10, had been stolen from his home when in fact it had not been stolen. It is proper to cross examine this witness concerning the filing of a false police report and false insurance claim as these are specific instances of the conduct of a witness that are probative of untruthfulness. As such it may be inquired into upon cross-examination pursuant to Federal Rule of Evidence 608(b). Second, Budhwani s solicitation of his landscaper to remove the fountain from his property so that Budhwani could claim it as stolen is a separate instance of Budhwani s conduct that may be inquired into on cross-examination for the purpose of attacking the witness character for untruthfulness under Rule 608(b). Third, Budhwani can be questioned about his statement under oath on September 8,

4 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 4 of 9 that the water fountain had been severely damaged, when in fact it had not, in accordance with Rule 608(b). Further, the false burglary report, the fraudulent insurance claim and Budhwani s actions surrounding are admissible as they are evidence of other crimes and acts that are admissible to prove the motive for Budhwani s testimony against Frank. Amin Budhwani was indicted on March 24, Following his arrest the Government filed it s Motion for Detention on March 26, Budhwani was detained at the request of the Government from his arrest in March until the Government agreed to bond on or about May 24, Prior to Budhwani s arrest the Government was fully aware of Budhwani s June 2008 DeKalb County residential burglary report and the DeKalb County Police investigation into Budhwani s acts of insurance fraud. After sitting in jail for approximately two months following his arrest Budhwani entered into a plea agreement with the Government on or about June 1, As part of his plea deal the Government agreed that in exchange for Budhwani s guilty plea to Count 4 of the superseding indictment that all remaining counts of the indictment against Budhwani would be dismissed and that no additional charges would be brought against Budhwani by the Government. Budhwani had attempted to commit insurance fraud, mail fraud, and wire fraud through his false insurance claim. These were potential charges that could have been brought against Budhwani. The fact that Budhwani, by virtue of his agreement with the Government is free of possible prosecution for those offenses is a matter directly relating to his credibility and is a proper subject for cross examination during the trial. It relates directly to his motive for cooperating with the Government, his motive for 4

5 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 5 of 9 testifying in the fashion in which he testifies and should be considered by the jury upon the issues of his credibility and trustworthiness. The Confrontation Clause guarantees criminal defendants an opportunity to impeach, through cross-examination, the testimony of witnesses for the prosecution. United States v. Baptista-Rodriguez, 17 F.3d 1354 (11 th Cir. 1994). The exposure of a witness motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Davis v. Alaska, 415 U.S. 308 (1974). The importance of full cross-examination into possible bias increases where the witness is the star Government witness or participated in the crimes for which the defendant is being prosecuted. United States v. Taylor, 17 F.3d 333 (11 th Cir. 1994). It does not matter that Defendant Frank is not alleged to have been involved with Budhwani s insurance fraud. That Budhwani escaped the investigation and prosecution by the federal government of crimes related to his insurance fraud may well have influenced his decision to plead guilty and cooperate with the Government and effected the substance of his testimony against the Defendant at trial. These are matters properly brought to the attention of the jury. In United States v. Lankford, 955 F.2d 1545 (11 th Cir. 1992), the appellate court recognized the right of the defendant to thoroughly cross-examine key prosecution witnesses on the basis of their potential motive to please the prosecutors. The defendant, the Sheriff of Fulton County, Georgia, was on trial for extortion and filing false tax returns. One of the prosecution s witnesses had two sons who had been charged in the state with selling marijuana. The defense sought to cross-examine the witness about his sons to show a possible motive or bias. The trial court s preclusion of 5

6 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 6 of 9 this topic of cross-examination was reversible error. The fact that there was, in fact, no deal does not foreclose the admissibility of this line of inquiry, for it is the witness perception and personal motive, not the actual existence of a deal, which is probative. Further, Federal Rule of Evidence 404(b) provides a proper foundation for crossexamination regarding Budhwani s insurance fraud as these acts of misconduct are introduced to show his motive in testifying as he so testifies. Cross-examining Budhwani concerning these matters does not constitute hearsay as Budhwani will be questioned concerning his own statements and actions. Therefore, Federal Rule of Evidence 801 is not impacted. Audio and video tapes would be used for purposes of impeachment, if necessary. Finally, the probative value of this evidence is strong: Budhwani lied to the police about the burglary just as he lied to Defendant Frank to get his help. Initial Encounter with Imran Chaudhry Imran Chaudhry has been identified as an individual the Government plans to call as a witness at trial. (Doc. 68 at 4). Law enforcement officers tape recorded two meetings with Chaudhry on July 31, The Government seeks an order excluding the first tape recorded conversation upon the basis that the tape recorded statements are inadmissible hearsay, not relevant and/or more prejudicial than probative and do not contain any substantive statements from the witness. Id. Defendant Frank respectfully shows first, that the recording sought to be excluded does indeed contain substantive statements from Mr. Chaudhry specifically naming Defendant Frank as well as admissions against Chaudhry s penal interests. 6

7 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 7 of 9 The tape recorded conversation is also admissible should Chaudhry give trial testimony inconsistent with statements contained in the recording. However, until the Government has presented its case in chief and Chaudhry has testified, it is impossible for the defense to know whether the playing of a portion of the tape recorded conversation would be presented to the jury. Finally, the tape recorded encounter in question also contains statements made by DeKalb County and Customs Enforcement law enforcement agents who may testify as Government witnesses at trial. Conceivably, the taped conversation would be admissible for purposes of impeachment should any of those witnesses testify inconsistently with material statements made and captured by the tape recording. Clearly, the credibility of any witness is a significant issue to be determined by the jury and material inconsistent statements should be considered in that analysis. Federal Rule of Evidence 608(b) provides that specific instances of conduct, if probative of truthfulness or untruthfulness, may be inquired into on cross-examination of a witness. If the evidence is offered to disprove the testimony of the witness, even if the evidence relates to acts of misconduct of the witness, the evidence is not barred under Rule 608(b). United States v. Costa, 947 F.2d 919 (11 th Cir. 1991). WHEREFORE, the Defendant respectfully prays that this Court issue an Order denying the Government s Motion in Limine to Exclude Hearsay and Extrinsic Evidence of Recorded Statement and Records and Videotape of Purported Insurance Fraud, for the reasons urged herein above. This 21 st day of January,

8 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 8 of 9 Respectfully submitted, FINESTONE & MORRIS, LLP Suite 2540 Tower Place 3340 Peachtree Road, N.E. Atlanta, Georgia (404) /s/ Bruce H. Morris Bruce H. Morris Georgia Bar No THE STEEL LAW FIRM 1800 Peachtree Street, N.W. Suite 300 Atlanta, Georgia (404) /s/ Brian Steel Brian Steel Georgia Bar No

9 Case 1:10-cr WSD-LTW Document 69 Filed 01/21/11 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that I have filed this day an original with the Clerk, United States District Court via electronic filing. I hereby certify that I have this day served a true and correct copy of the within and foregoing DEFENDANT DONALD E. FRANK S BRIEF IN OPPOSITION TO THE GOVERNMENT S MOTION IN LIMINE TO EXCLUDE HEARSAY AND EXTRINSIC EVIDENCE OF RECORDED STATEMENT AND RECORDS AND VIDEOTAPE OF PURPORTED INSURANCE FRAUD upon counsel, via PACER: Susan Coppedge, Esquire Assistant United States Attorney Christopher C. Bly, Esquire Assistance United States Attorney This 21 st day of January, /s/ Bruce H. Morris Bruce H. Morris 9

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