A guy I was prosecuting for Burg Bldg was going to get probation. Apparently, that was not good enough. He wanted a misdemeanor. He gave his lawyer FAKE military orders to give to me which said he was going to Afghanistan. The defendant is now going open to the judge for probation. How can I get the fake orders into evidence for punishment short of threatening the defense with another indictment so that the defense won't object. Is there an exception to the rule about information exchanged in plea negotiations?

[This message was edited by Brian Corrigan on 06-03-02 at .]

My take is that if your guy pleads guilty, then statements made in the plea bargaining
process are not barred by Rule 410. See TEX. R. EVID. 410(4); Herasimchuck, Texas
Rules of Evidence Handbook at 347-48; but see Neugebauer v. State, 974 S.W.2d 374 (Tex.
App.--Amarillo 1998, pet. ref'd). You�ll also have some Rule 503 issues.

If he doesn�t plead guilty (or if he withdraws his plea) then it doesn�t look like his
statements could ever be used against him. Maybe an argument could be made that fake
orders are not a statement � I don�t know.

Looks like a lot more trouble than its worth.

Can you turn the orders over to his commanding officer? I'm sure pulling a stunt like this gets you a dishonorable discharge and many months in Fort Leavenworth breaking rocks. The Feds might be able to operate around the fact that it is privileged in Texas. Plus, it sort of reminds me of compelled false statements and the Fifth Amendment. Cf. Maitland v. State, 993 S.W.2d 880 (Tex. App.--Fort Worth 1999, no pet.)(Fifth Amendment does not confer a privilege to lie). Weird.

Assuming this guy really is in a military unit, then he is subject to punishment by the military. If he forged orders to Afghanistan he has committeda crime under UCMJ (damn if I remember what) and the military should be willing to prosecute. But you will have to locate his commander and relay the info.

I have found the military to be very responsive. We caught a recruiter altering an order terminating a probation to show that the defendant's offense was reduced to a misdemeanor (so the recruit could get in the military and the recruiter could get a bonus).

We had a difficult time prosecuting (the document was delivered by fax and it was hard to pinpoint the sender) but the military busted down the recruiter and made sure he wasn't going to get any promotions. They also got him to admit his guilt.

I already talked to a friend who is in JAG. Apparently, reservists are not subject to the military code. All you can do with reservists is activate them or kick them out.

I also talked to the defendant's C/O, who has been very helpful. He said there isn't much he can do.

It is only a Class A misdemeanor but I think you could charge him under this.

Actually, since it was a FAKE document that he presented to gain an advantage then it would seem that you would be able to introduce that evidence at sentencing. The defense should not be able to stand behind a fraudulent document.

[This message was edited by Gordon LeMaire on 06-04-02 at .]

You mentioned that he pleaded open. Is there a presentence investigation report to be done? Is there any chance of getting it in that way?

What about charging the Defendant with Forgery? He apparently made a writing so that it purported to be the act of another who did not authorize the act. Looks like it could be a felony because the writing purports to be an instrument issued by a state or national government(?). Anyone who would use his alleged service to his country in this manner is worse than someone that avoids service in the first place. Hammer him!

Thanks for y'all's help. I gave a copy to my probation officer to confront the defendant with during the PSI, so it is ALL in now.

I had a defendant charged with misdemeanor theft who was trying to get deferred prosecution (apparently she was too good for deferred adjudication) from the county attorney's office. She presented a forged letter from her employer saying how she was a great employee and she'd lose her gemologist license if she had a theft deferred. The employer said, "What letter? I didn't write a letter." The defendant then came into the DA's office and gave a written statement that she forged the letter and presented it to the county court. We now have her on a felony deferred adjudication for Tampering/Manufacturing Physical Evidence, and we made her plead guilty and take a final conviction on the misdemeanor theft as part of our plea agreement. Ironic, huh?

A gemologist forging documents. Hmm. That's scary for a guy who just bought a wedding ring a few months ago. Thanks, Jane, for making sure she won't be a risk to consumers in the future.