                                                                                            ACCEPTED
                                                                                        03-14-00605-CR
                                                                                                5021070
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
April 24, 2015                                                                    4/24/2015 11:14:28 AM
                             CAUSE No. 03-14-00605-CR                                 JEFFREY D. KYLE
                                                                                                 CLERK




                         IN THE COURT OF APPEALS
                 FOR THE THIRD COURT OF APPEALS DISTRICT
                              AUSTIN, TEXAS




                         Dr. HOWARD THOMAS DOUGLAS
                                  Appellant,
                                      v

                               THE STATE OF TEXAS
                                     Appellee.




        On appeal from Cause No. D-1-DC-12-900059, in the 331st District Court,
                                Travis County, Texas




                               APPELLANT’S BRIEF




                                        HAMMERLE FINLEY LAW FIRM
                                        Craig M. Price
                                        State Bar No. 16284170
                                        2871 Lake Vista Drive, Suite150
                                        Lewisville, Texas 75067
                                        Telephone: 972-436-9300
                                        Telecopier: 972-436-9000
                                        cmp@hammerle.com

                                        ATTORNEY FOR APPELLANT
                                         I.

                          Identity of Parties and Counsel

Trial Judge: Honorable Robert A. Perkins
             331st Judicial District Court
             1104 Nueces, Suite 203
             Austin, Texas 78701

Defendant: Dr. Howard Thomas Douglas
           391 E. Las Colinas Blvd, Suite 130-614
           Irving, Texas 75039

Counsel:    Craig M. Price,
            E-Mail: cmp@hammerle.com
            HAMMERLE & FINLEY, LLC
            2871 Lake Vista Drive, Suite 150
            Lewisville, Texas 75067
            SBN 16284170

State:      Donna Crosby,
            Travis County Criminal District Attorney
            509 West 11th Street
            Austin, Texas 78701
            SBN 05118700




                                         i
                                                             II.

                                                 Table of Contents

Identity of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         iv

Index of Statues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       vi

Appellant’s Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          1
                                                                                                                 vi
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      5

Issue one. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5

Evidence was legally insufficient to support Jury’s verdict. . . . . . . . . . . .                               5




                                                              ii
1.       No legally sufficient evidence supports a finding of intent to
         defraud or harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   8

2.       No legally sufficient evidence supports a finding that Appellant
         engaged in deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        9

3.       No legally sufficient evidence exists that Appellant caused to be
         submitted a form HCFA 1500 seeking payment for services
         rendered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       10

4.       No legally sufficient evidence exists, other than uncorroborated
         testimony of accomplice witness, that Appellant caused TMIC
         to execute any document. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                10

5.       No legally sufficient evidence supports the jurisdictional amount
         for a third degree felony because the State did not segregate the
         proper amount billed from allegedly fraudulent amounts billed. . .                                12

6.       No legally sufficient evidence supports the amount of restitution. .                              16

Issue Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      23


Appellant was denied a fair trial because of ineffective assistance of
      counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     17

A.       Standard of Review . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .         17

B.       Appellant’s trial counsel was ineffective throughout . . . . . . . . . . .                        18




                                                             iii
                                                              III.

                                                 Table of Authorities

 Jackson v. Virginia, 443 U.S. 307, 313 (1979) . . . . . . . . . . . . . . . . . . .                              5

 Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) . . . . . . . .                                        5

 Jackson, 443 U.S. at 319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                5

 Brooks v. State, 323 S.W.3d 893, 903, 912 (Tex. Crim. App. 2010) . . .                                           5

 Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . .                                      5

 Winfrey v. State, 323 S.W.3d 875, 882 . . . . . . . . . . . . . . . . . . . . . . . . . .                     5, 20

 Williams v. State, 235 S.W.2d 742, 750 (Tex. Crim. App. 2007) . . . . . .                                        5

 Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) . . . . . . . . .                                      6

 Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App.—Dallas 1991, pet
       ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      9

 Goldstein, 803 S.W.2d at 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  12

 Lamar v. State, Cause No. 05-09001315- CR No.; -01316; 01317, (Tex.
      App.—Dallas 2010,         ) (not published) . . . . . . . . . . . . . . . . .                               9, 10

Mosley v. State, Cause No. 05-09-001315- CR No. 01316-CR No.;
     01317-CR No. . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .              11, 12

 Cathey v. State, 992 S.W.2d 460, 463, n.2 (Tex. Crim. App. 1999), cert.
      denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). . .                                           11

 Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998) . . . . . . . . . .                                     11

 Moore v. State, 984 S.W.2d 783, 787 (Tex.App.—Waco 1999, no pet.) .                                              11

 Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App. 1989), cert.
       denied, 528 U.S. 954, 120 S.Ct. 380, 145 L.Ed.2d 296 (1999) . . .                                          12
                                                              iv
Smith v. State, 681 71, 75-76 (Tex. App.—Houston [14th Dist.] 1983),
      aff’d, 722 S.W.2d 408 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . .                           11, 14

Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990) . . . . . . . .                                  13, 15

Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003) . . . . .                                     13,15

Lee v. State, 29 S.W.3d 70, 575 (Tex. App.—Dallas 2000) . . . . . . . . .                                  14, 22

Fisher v. State, 803 S.W.2d 828, 830 (Tex. App.—Dallas 1991, pet. ref’d)                                   21

Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980) . . . .                                     16

Thompson v. State, 9 S.W.3d (Tex.Crim.App. 1999) . . . . . . . . . . . . . . .                              17,18

Aldrich v. State, 296 S.W.3d 225 (Tex.App.—Fort Worth 2009, pet. ref’d)
       (op. on reh’g en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           17

Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) . . . . . . . . . . . .                             18

Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005) . . . . . . . 18, 19

Cannon v. State, 252 S.W.3d 342, 349-50 (Tex.Crim.App. 2008) . . . . . . . 18, 21

United States v. Cronic, 466 U.S. 648, 658-59 (1984) . . . . . . . . . . . . . . . .                       18, 21

Strickland v. Washington, 466 U.S. 668, 692 (1984) . . . . . . . . . . . . . . . . .                       18

Vaughn & Sons, Inc. v. State, 750 S.W.2d 17, 18 (Tex. App.—Texarkana
     1988,      ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    20

Young v. State, 957 S.W.2d 923 (Tex.App.—Texarkana 1997) . . . . . . . .                                    21

Fuller v. State, 73 S.W.3d 250, 257 (Tex. 2002) . . . . . . . . . . . . . . . . . . .                       22

Montgomery v. State, 810 S.W.2d 272, 291 (Tex.Crim.App. 1990)
     (op’n on rehearing). . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . .       35



                                                           v
                                                     Statutes:

 Tex. R. App. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     2

 Texas Penal Code Ann. §32.46(a)(1) (Vernon Supp. 2002) . . . . . . . . .                            7, 15

 Tex. Penal Code Ann., §32.46(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . .             8

 Tex. Penal Code Ann., §6.03(a) (Vernon 2012). . . . . . . . . . . . . . . . . . .                     8

 Tex. Penal Code Ann., §31.01(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . .              9

 Tex. Code of Crim. Proc. Ann., Sec. 38.14. . . . . . . . . . . . . . . . . . . . . . .                11

 Tex. Penal Code Ann., Sec. 8.02[a] . . . . . . . . . . . . . . . . . . . . . . . . . . . .            20

 Tex. Penal Code Ann., Sec. 803[b][1] . . . . . . . . . . . . . . . . . . . . . . . . . .              20

 Texas Penal Code Sec. 7.24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         20



                                  STATEMENT OF THE CASE

        Appellant appeals his conviction by a jury in Travis County, Texas, for the

third degree felony offense of securing execution of a document by deception.

Appellant was sentenced by the judge to 5 years in prison. [CR 190]




                                                        vi
                          CAUSE No. 03-14-00605-CR

                  IN THE COURT OF APPEALS
              FOR THE THIRD COURT OF APPEALS
                   DISTRICT AUSTIN, TEXAS


                     Dr. HOWARD THOMAS DOUGLAS,
                               Appellant,

                                     VS.

                            THE STATE OF TEXAS,
                                  Appellee.

 On appeal from Cause No. D-1-DC-12-900059, in the 331st District Court, Travis
                               County, Texas

                             APPELLANT’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

      COMES NOW, Appellant, Dr. Howard Thomas Douglas (hereafter

“Appellant”), and files his Appellant’s Brief, and in support thereof

respectfully shows the following:

                                     I.

                           STATEMENT OF FACTS

      Appellant is a medical doctor. He had incorporated a company known as

North Texas Medical Evaluators (hereafter “NTME”), which provided medical




 APPELLANT’S BRIEF                                                 PAGE 1 OF 39
 services in the worker’s compensation sector to various entities that were

 insured by Texas Mutual Insurance Company (hereafter “TMIC”). [5 RR 128-

 129, 132-43] Among the services it provided, NTME would perform Functional

 Capacity Evaluations (hereafter “FCEs”) for individuals to determine their ability

 to return to work or to perform certain jobs. [4 RR 120-42; 5 RR 89-103]

 Employees of NTME would perform these FCEs, then prepare their reports,

 which were reviewed by physicians employed by NTME, and then the reports

 would be submitted by NTME to TMIC. [ 4 RR 156-76] NTME would bill

 TMIC for these services according to certain authorized billing codes, and TMIC

 would then issue a check to NTME based on their audit of NTME’s bills.

      NTME’s invoices were divided into increments, as permitted by the industry,

so that they would bill for “units” of time based on the actual amount of time spent

on the patient’s FCE, including time spent preparing and reviewing a report. [5 RR

20-46; 6 RR 166] NTME took the position that it was permitted by industry

standards to bill for a maximum of 16 units – with each unit representing a

quarter hour (15 minutes) -- if the NTME agents spent that amount of time working

on the FCE file, regardless of whether the agent was meeting face-to-face with the

patient. [6 RR 166] However, TMIC took the position that NTME could bill

only for the amount of time that NTME’s representative, whether it was a

physician, a technician or some other employee, spent in a face-to-face consultation




  APPELLANT’S BRIEF                                                      PAGE 2 OF 39
or meeting with the person for whom the FCE was being conducted (i.e., the

patient). [3 RR 42, 47-49]

       During the course of an audit of NTME’s billings, TMIC determined that

NTME was improperly billing it for time that was not compensable; i.e., any

portion of the FCE that was not spent face-to-face with the patient. [ 3 RR 57-59]

TMIC’s in-house investigators spoke with several people who had received FCEs

from NTME-affiliated doctors, and TMIC believed that NTME was billing it for

time that was not compensable. TMIC then conducted a “sting” operation in which

they sent one of its investigators, Bonita Reid, posing as a patient, to an NTME-

affiliated doctor, who ordered that Ms. Reid have an FCE. Ms. Reid then went to

an NTME technician for the FCE. According to its investigation, TMIC determined

that the face-to-face portion of Ms. Reid’s FCE did not last the amount of time for

which NTME billed TMIC – 16 units (four hours). Based on its investigation,

TMIC apparently filed a complaint with the Travis County Criminal District

Attorney’s Office, and this prosecution resulted. [5 RR 60-83]

       Appellant was charged in his individual capacity in Cause No. D1-DC-12-

900059, while NTME was charged in its corporate capacity in a different matter.

[CR 5] NTME was not indicted in the same cause number as Appellant, but

was indicted in Cause No. D-1-DC-10900206.

       During trial, Appellant’s attorney discovered for the first time, and not from




  APPELLANT’S BRIEF                                                       PAGE 3 OF 39
any disclosure initiated by the State, that TMIC provides the financial funding for

the two prosecutors with the Workers’ Compensation Fraud Unit of the Travis

County Criminal District Attorney’s Office who prosecuted this case, Ms. Donna

Crosby and Ms. Meg Brooks, as well as for one paralegal and one part-time staff

person in that unit. [5 RR 60-83] Appellant attempted to introduce into evidence

the existence of this financial relationship between TMIC and the State, but the trial

court denied Appellant’s request. [5 RR 82-83] Therefore, the jury never heard of

this relationship.

                                          II.

                       SUMMARY OF THE ARGUMENT
       Appellant moves this Court to reverse the judgment against him because

there is no legally sufficient evidence to support the jury’s verdict against

Appellant with respect to the finding that Appellant acted with the intent to

defraud or harm; that he engaged in deception that caused Texas Mutual Insurance

Company to execute any document. There also is no legally sufficient evidence

that the pecuniary value of the amount of such document(s) satisfied the

jurisdictional amount for a third degree felony, and a fatal , material variance

existed in the pleading and the proof. Appellant also seeks a new trial on the

grounds that the trial court erred in excluding information about a financial

relationship between the State and Texas Mutual Insurance Company, the alleged

“victim.”


  APPELLANT’S BRIEF                                                       PAGE 4 OF 39
                                         III.

                       ARGUMENT AND AUTHORITIES
                               Issue One

       The evidence was not legally sufficient to support the jury’s verdict on
       securing execution of a document by deception.

       A.    Standard of Review.

       Due process requires that the State prove every element of the crime

 charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313

(1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). When

reviewing the sufficiency of the evidence to support a conviction, the reviewing

court examines the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323

S.W.3d 893, 903, 912 (Tex. Crim. App. 2010); Wise v. State, 364 S.W.3d 900, 903

 (Tex.Crim.App. 2012). The sufficiency standard is the same for both direct and

 circumstantial evidence. Wise, 364 S.W.3d at 903.

       It is the obligation and responsibility of appellate courts to ensure that the

 evidence presented actually supports a conclusion that the defendant committed the

 crime that was charged. Winfrey v. State, 323 S.W.3d 875, 882; Williams v. State,

 235 S.W.2d 742, 750 (Tex. Crim. App. 2007). The appellate court should measure

 the sufficiency of the evidence by the elements of the offense as defined by a



  APPELLANT’S BRIEF                                                      PAGE 5 OF 39
 hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex.

 Crim. App. 2011).

       B.     Evidence was not legally sufficient to support the verdict.

       The evidence was n o t legally sufficient to support the jury’s guilty

 verdict against Appellant for securing the execution of a document by

 deception, and this Court should reverse the judgment against Appellant and

 render a judgment of not guilty in Appellant’s favor.

      Securing execution of a document by deception is proscribed by section

32.46 of the Texas Penal Code:

      A person commits an offense if, with intent to defraud or harm any person,
      he, by deception causes another to sign or execute any document affecting
      the pecuniary interest of any person.

       Texas Penal Code Ann. §32.46(a) (1) (Vernon Supp. 2002) (emphasis

added). The value alleged in the indictment and c o u r t ’ s charge made the

offense a third degree felony. See Tex. Penal Code Ann., Sec. 32.46 (b) (5). [CR

5]

      The application paragraph of the trial court's charge tracked the indictment,

and permitted the jury to convict if it found beyond a reasonable doubt that

Appellant, “did then and there with intent to defraud and harm the TEXAS

MUTUAL INSURANCE COMPANY, by deception create and confirm by words

or conduct a false impression of fact, to wit: the said Howard Thomas Douglas



  APPELLANT’S BRIEF                                                         PAGE 6 OF 39
caused to be submitted to the TEXAS MUTUAL INSURANCE COMPANY a

form HCFA (Health Care Financing Administration) 1500 seeking payment for

services rendered, said services were as follows: 16 units billed under CPT (current

procedural terminology) code 97750, when in fact, 16 units of service were not

rendered in accordance with the Texas Workers Compensation Medical Fee

Guidelines not believing it to be true, that was likely to affect the judgment of the

said Texas Mutual Insurance Company in the transaction which deception caused

the Texas Mutual Insurance Company to sign or execute documents affecting its

property, service or pecuniary interest, where the value of the property, service or

pecuniary interest was more than $20,000 but less than $100,000 . . . .” [CR 172

(emphasis added)] The State did not allege that Appellant acted negligently or

recklessly; only that he acted with intent to defraud and harm. [CR 5]

      As stated by Martha Luevano, the State’s first witness, the FCE billing

practice that the State considered to be fraudulent was the billing for time during

which there was no face-to-face contact with the patient. [3 RR 47-49] In other

words, the State alleged that the fraud occurred because NTME billed for the time

spent for work related to an FCE if that work was not spent in face-to-face

interaction with the patient. [3 RR 47-49; CR 5]

    1.     No legally sufficient evidence supports a finding
           of intent by Appellant to defraud or harm.




  APPELLANT’S BRIEF                                                       PAGE 7 OF 39
       According to the State’s allegation in its indictment, the question is whether

the cumulative force of the facts in the record supports a deduction by any rational

finder of fact of the logical consequence or conclusion that:

   • Appellant did,

   • with intent to defraud and harm

   • the TEXAS MUTUAL INSURANCE COMPANY,

   • by deception create and confirm by words or conduct a false impression of
     fact, to wit: the said Howard Thomas Douglas caused to be submitted to the
     TEXAS MUTUAL INSURANCE COMPANY a form HCFA (Health Care
     Financing Administration) 1500 seeking payment for services rendered, said
     services were as follows: 16 units billed under CPT (current procedural
     terminology) code 97750, when in fact, 16 units of service were not rendered
     in accordance with the Texas Workers Compensation Medical Fee Guidelines,

   •   not believing it to be true,

   • that was likely to affect the judgment of the said Texas Mutual Insurance
     Company in the transaction, [and]

   • which deception caused the Texas Mutual Insurance Company to sign or
     execute documents affecting its property, service or pecuniary interest, where
     the value of the property, service or pecuniary interest was more than $20,000
     but less than $100,000 . . . .

[CR 5; 172 (emphasis added)]. In other words, the State alleged – and had to prove –

that Appellant caused HCFA 1500 forms to be submitted by NTME seeking payment

for 16 units of service by NTME when 16 units of service were not rendered in

accordance with the Texas Workers Compensation Medical Fee Guidelines, and that

Appellant did not believe that 16 units of service had been properly rendered when



  APPELLANT’S BRIEF                                                       PAGE 8 OF 39
the forms were submitted to TMIC. [CR 5]

      However, the evidence showed that Appellant did believe that NTME had

actually rendered 16 units of compensable service, and Appellant did believe that

NTME could properly bill TMIC for the time related to preparing a written FCE

report, as well as for other time related to the FCE, even if such time was not spent

face-to-face with the patient. [4 RR 156-73; 4 RR 204-12; 5 RR 20-46; 6 RR 166]

      There was no legally sufficient evidence adduced at trial that Appellant knew

that billing for time spent writing an FCE report, even if conducted outside the

presence of the patient, was not permitted by the Texas Workers Compensation

Medical Fee Guidelines. A person acts intentionally, or with intent, with respect to

the nature of his conduct or with respect to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result. Tex.

Penal Code Ann., Sec. 6.03(a) (Vernon 2012). Intent to deceive can be inferred

from acts, words and conduct of the accused. Goldstein v. State, 803 S.W.2d 777,

791 (Tex. App.—Dallas 1991, pet ref’d).

      The conclusion that Appellant possessed the mens rea for the offense of

securing execution of a document by deception was simply theorizing or guessing by

the jury as to the meaning of Appellant’s alleged “directive” for NTME employees to

bill for 16 units of an FCE, even though portions of the services billed were not

conducted face-to-face with the patient. Such a conclusion is not a logical deduction




  APPELLANT’S BRIEF                                                       PAGE 9 OF 39
from that conduct. See Megan Winfrey, 393 S.W.3d at 771. See also Hacker, 389

S.W.3d at 874 (recognizing that without proof of wrongful conduct “all of this

evidence was mere ‘suspicion linked to other suspicion’”); Richard Winfrey, 323

S.W.3d at 882 (holding that evidence giving rise to only a suspicion of guilt, even a

strong one, is insufficient to support a conviction); cf. Patrick, 906 S.W.2d at 487

(holding evidence sufficient to support mens rea for murder).

      Viewing all of the circumstantial evidence and any reasonable inferences from

that evidence in the light most favorable to the State, the cumulative force of that

evidence is insufficient to convince any rational factfinder beyond a reasonable doubt

that Appellant acted with the requisite mens rea necessary to support his conviction

for securing execution of a document by deception. See, e.g., DeLay v. State, Cause

No. 03-11-00087-CR, at p. 21 (Tex. App.—Austin, Sept. 19, 2013, pet. granted)

(lack of legally sufficient evidence that funds were “proceeds of criminal activity”

requires an acquittal). See also Stobaugh v. State, Cause No. 02-11-00157-CR, at *

p. 172 (Tex. App.—Denton, Jan. 23, 2014, pet. denied) (reversing conviction for

murder because there was no legally sufficient evidence of intent to cause serious

bodily injury to victim by committing an act clearly dangerous to human life that

resulted in her death or that he intentionally or knowingly killed the victim).

      Likewise, there was no testimony that TMIC would not have executed any

checks payable to NTME but for Appellant’s conduct. See Goldstein, 803 S.W.2d at




 APPELLANT’S BRIEF                                                        PAGE 10 OF 39
701; Mosley v. State, Cause No. 05-09-001315- CR No. 01316-CR No.; 01317-CR

No., (Tex. App.—Dallas 2010, no pet.) (not published) (“Based on the record before

us, we conclude a rational jury could find that but for appellant’s actions, there would

have been no lease.”). See also Smith v. State, 681 S.W.2d 71, 75-76 (Tex. App.—

Houston [14th Dist.] 1983), aff’d, 722 S.W.2d 408 (Tex. Crim. App. 1986)

(misrepresentations cause victim to sign contract).

      As a result, this Court should reverse the trial court‘s judgment and render a

judgment of acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey, 437

U.S. 19, 24–25, 98 S. Ct. 2151, 2154–55 (1978); Burks v. United States, 437 U.S. 1,

16–18, 98 S. Ct. 2141, 2150–51 (1978); Megan Winfrey, 393 S.W.3d at 774.

             In this case, there exists no legally sufficient evidence – direct or

circumstantial – that Appellant took any action with the required mens rea: with the

intent to defraud and harm TMIC by deception. At best, the evidence showed that

Appellant believed that NTME could legitimately bill TMIC for time related to an

FCE even if such time was not spent face-to-face with the patient. [4 RR 156-73; 6

RR 166]

      2.     No legally sufficient evidence supports a finding that
             Appellant engaged in deception.

       A person engages in deception by creating or confirming by words or

 conduct a false impression of law or fact that is likely to affect the judgment of

 another in the transaction, and that the actor does not believe to be true. Tex. Penal



 APPELLANT’S BRIEF                                                         PAGE 11 OF 39
 Code Ann., Sec. 31.01(1)(A) (emphasis added). The victim’s testimony that he

 would not have executed the document but for the accused’s conduct is

 sufficient to establish the element of deception. See Goldstein, 803 S.W.2d at 701.

 See also Mosley v. State, CR No. 01316-CR No.; 01317-CR No., (Tex. App.—

 Dallas 2010, no pet.) (not published) (“Based on the record before us, we

 conclude a rational jury could find that but for appellant’s actions, there would

 have been no lease.”).

      Appellant’s witnesses testified that industry standards allow companies like

NTME to bill for a maximum of 16 units – with each unit representing a quarter hour

-- if the NTME agents spent that amount of time working on the FCE file, regardless

of whether the agent was meeting face-to-face with the patient. [4 RR 156-73; 5 RR

20-46; 6 RR 166] Additionally, Shelly Estrada, NTME’s office manager, testified

that NTME would not have billed for time spent preparing the report, which occurred

beyond the face-to-face time spent with the patient unless such a practice was

allowed [6 RR 166].

      Additionally, in cases involving securing the execution of a document by

 deception, the State typically must prove that the victim would not have executed

 the document but for the accused’s conduct in order to establish the element of

 deception. See Goldstein, 803 S.W.2d at 701. See also Cause No. 05-09-001315-

 CR No. 01316-CR No.; 01317-CR No., (Tex. App.—Dallas 2010, no pet.) (not




 APPELLANT’S BRIEF                                                       PAGE 12 OF 39
published) (“Based on the record before us, we conclude a rational jury could find

that but for appellant’s actions, there would have been no lease.”)

      Similarly, the State should have established that TMIC would not have

executed the documents at issue but for the actions of Appellant. However, no

evidence supports that conclusion, and no legally sufficient evidence exists to

support the jury’s verdict.

      As a result, this Court should reverse the judgment against Appellant and

render a not guilty verdict in his favor.

     3.     No legally sufficient evidence supports the
            jurisdictional amount because the State
            did not segregate the proper amount
            billed from allegedly fraudulent amounts
            billed.

      The State also failed to adduce any legally sufficient evidence of the

difference between the value of allegedly fraudulent FCE services that were

performed and billed by NTME and the value of the properly billed FCE testing

services performed and billed by NTME. Therefore, the State failed to establish

the jurisdictional amount of the offense by legally sufficient evidence.

      In other words, the State had to prove that the pecuniary value of the

portion of the documents that were signed as a result of fraud and deception had

to have an aggregate value of $20,000 or more but less than $100,000.

Otherwise, the State would not have established, by legally sufficient evidence,



APPELLANT’S BRIEF                                                          PAGE 13 OF 39
 that Appellant’s alleged conduct rose to the level of a third degree felony.

      The State relied on numerous checks to establish the jurisdictional value of

this offense. In order for Appellant to be convicted of the offense of securing

execution of a document by deception, the State had to establish by legally

sufficient evidence the portion of the amount of each check relied upon in the

indictment that was executed as a result of Appellant’s deception and fraud. In

other words, the State had to prove, beyond a reasonable doubt, the amount of each

check that did not represent the value of services actually rendered by co-

defendant NTME, and, therefore, was paid as a result of fraud.

       Appellant does not argue that the statute requires the State to prove that

 actual harm resulted from the intent to defraud. See Smith v. State, 681 S.W.2d

 71, 75-76 (Tex. App.—Houston [14th Dist.] 1983), aff’d, 722 S.W.2d 408 (Tex.

 Crim. App. 1986). However, because Appellant was charged with securing

 execution of a document by deception as a third degree felony -- $20,000 or

 more but less than $100,000 -- the State was required to prove a value that was

 sufficient to satisfy the jurisdictional requirement of its pleading. See Lehman v.

 State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990); Simmons v. State, 109 S.W.3d

 469, 472 (Tex. Crim.App. 2003). See also Lee v. State, 29 S.W.3d 70, 575 (Tex.

 App.—Dallas 2000).

       The State presented testimony that NTME could not properly bill for time

in which the physician or other healthcare provider (i.e., nurse, technician, etc.)


 APPELLANT’S BRIEF                                                       PAGE 14 OF 39
was not in the presence of the patient. Additionally, the State presented evidence

that NTME had, in fact, billed TMIC for time that was not spent in a face-to-

face meetings or consultations with each patient. However, there is no question

that a portion of each check paid by TMIC to NTME, and each invoice from

NTME on which those checks were based, included billing and payment for

services that were actually and properly earned by NTME [5 RR 108-116; State’s

Ex. 5]. As a result, the State should have segregated the value of each document

executed that was allegedly induced by Appellant’s allegedly deceptive conduct.

      The State essentially admitted at trial that it did not know the specific amount

or portion of any document that allegedly was executed by deception. In fact, the

State conceded that a portion of each check was induced by a legitimate amount of

money owed to NTME, and not entirely by deception. [State’s Ex.5] As a result, the

State created an average amount of purported fraud on which to base its jurisdictional

allegations. Kathleen Haden, TMIC’s senior investigator, testified that she only

spoke with a handful of the more than 135 patients named in the indictment:

      Q: Now, so of those, let’s say, 138 people, you talked to six people that you
      can remember?

      A: Off the top of my head, yes. But I think, in total, I spoke with around 10
      myself.

[3 RR 108]

      Ms. Haden admitted that TMIC was just guessing about the amount of time




 APPELLANT’S BRIEF                                                      PAGE 15 OF 39
     actually spent during the FCEs:

     Q: You don’t know the exact amount of time that was spent in an FCE for
     somebody you didn’t talk to you, do you?

     A: No, I do not.

[3 RR 112]

     Q: So is there a -- there’s three columns, one for you giving credit to the
     healthcare provider [NTME] for 2 units, correct?

     A: Yes.

     Q: And another column giving them 4 units of credit, correct?

     A: Yes.

     Q: And the third column is giving them no credits, correct?

     A: Well, the third column is the actual amount they charged and the actual
     amount we paid.

     Q: So it’s based on 16 units?

     A: Correct.

     Q: So in the columns where you give the healthcare provider 2 units of credit
     and 4 units of credit – look for Mr. Ettinger.

     A: Okay.

     Q: Do you know how much time was actually spent on Mr. Ettinger’s FCE?

     A: I would have to review my interview summary.

     Q: Okay. But the number assigned to his FCE in those two columns may not
     be the actual amount of time he spent on his FCE, correct?

     A: It’s possible, if we did the calculation for every single patient, giving credit



 APPELLANT’S BRIEF                                                       PAGE 16 OF 39
      for 2 units or giving credit for an hour.

[3 RR 114-15] Ms. Haden resisted stating the obvious about the State’s calculations:

that TMIC (in other words, the State) was just guessing:

      Q: Right. So the ones where you give [NTME] credit for 2 units and 4 units,
      that’s your hypothetical, correct?

      A: It’s not a hypothetical. It’s based on the results of our investigation.

      Q: Well, for Mr. Ettinger, it’s hypothetical because it’s not the actual time he
      told you, is it?

      Q: On your chart, it does not reflect the actual amount of time that Mr.
      Ettinger spent in his FCE, does it?

      A: No. There is not a column with that information in it.

      Q: You just decide a figure, based on your analysis, that it could have taken 2
      units or it could have taken 4 units?

      A: I didn’t actually do the calculations, but that’s what the spreadsheet
      reflects. We did calculations for giving credit of 2 units and calculations for
      giving credit of 4 units.

      Q: So at least as far as you’re concerned, of the 147 entries in the indictment,
      you don’t know how much time was spent on each one of their FCE’s do you?

      A; On every single patient, no.

[3 RR 115-16 (emphasis added)] Rather, Ms. Haden admitted that she would only

know the specific amount of time expended on the FCE’s for those patients that she

spoke with, personally, which was less than ten people. [3 RR, 108- 116]

      TMIC even paid a claim for Bonita Reid, which was set up as a false claim

pursuant to TMIC’s undercover investigation:



 APPELLANT’S BRIEF                                                       PAGE 17 OF 39
      Q: And how much did you pay her for it?

      A: We paid for 16 units.

      Q: And why did you do that?

      A: That’s part of our undercover operation. It needs to appear as a normal
      claim.

[3 RR 129-30]

      Even the State’s bank records, which showed payments from TMIC to NTME,

cannot identify the actual amounts paid to NTME for allegedly fraudulent invoices:

      Q: So all you can tell from Exhibits 15A and 15B is these were checks from
      Texas Mutual Insurance Company that were deposited in a North Texas
      Medical Evaluators bank?

      A: Yes, sir.

      Q: Okay. Ms. [Wendy] Rasmussen, did you check to see what services relate
      to these deposits – what medical services relate to these deposits?

      A: No, sir. I had the bank records. And I transferred the information on the
      bank records into a spreadsheet.

      Q: Okay. So there is no way for you to tell, from Exhibits 15A and 15B,
      whether these payments are for FCEs or for some other service, correct?
      A: No, sir.

      Q: Okay. And you don’t know if North Texas Medical Evaluators billed
      Texas Mutual Insurance Company for any other services, besides FCEs, do
      you?

      A: No, sir.

[3 RR 174] No other witness testified that TMIC was billed by NTME only for

FCEs, nor did any witness testify that TMIC only paid for allegedly fraudulent FCEs.



 APPELLANT’S BRIEF                                                    PAGE 18 OF 39
      William Muhr, TMIC’s senior fraud investigator, also participated in the

investigation of NTME. Mr. Muhr stated that he spoke – either by telephone or in

person -- with approximately nine of the workers who had FCEs performed. [3 RR

186] However, Mr. Muhr could only identify the names of two of those people

during trial. [3 RR 186-87] Mr. Muhr also admitted that there was no rhyme nor

reason behind which people he actually spoke with:

      Q: Okay. You didn’t try to talk to everybody, did you?

      A: No, I did not.

      Q: What determined who you tried to talk to?

      A: There was no stipulation, just call people and find out how long the
      examination took.

[3 RR 188]

      As a result, the State’s investigator gave several different hypothetical

amounts that could have constituted the amount of TMIC’s property that was based

on alleged fraud; the State certainly did not know. [3 RR108-16; State’s Ex. 5]

The State not only had to guess at the length of the actual FCEs, but it also had to

admit that a portion of each test was legitimate and, therefore, not all of the payment

was secured by alleged deception; rather, at least a portion of each document was

based on legitimate entitlement to payment.

      There is no question that a portion of each check paid by TMIC to NTME,

and each invoice from NTME on which those checks were based, included billing


 APPELLANT’S BRIEF                                                       PAGE 19 OF 39
and payment for services that were actually and properly earned by NTME [        ].

The State simply never bothered to accurately segregate the amount of the checks

that were procured lawfully, and without deception, from the amount of the checks

that allegedly were induced by Appellant’s purported deception. As a result, the

testimony showed that the State’s statistical underpinnings that allegedly made up

its proposed amount of purported fraud were clearly based on convenient and

rudimentary math and not on actual conduct. In other words, the jury was simply

guessing about the amounts of the documents that allegedly were secured by

deception.

      Circumstantial evidence alone can be sufficient to establish guilt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw

multiple reasonable inferences as long as each inference is supported by the evidence

presented at trial, but juries are not permitted to come to conclusions based on mere

speculation or factually unsupported inferences or presumptions. See, e.g., Megan

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). “‘[A]n inference is a

conclusion reached by considering other facts and deducing a logical consequence

from them,’ while ‘[s]peculation is mere theorizing or guessing about the possible

meaning of facts and evidence presented.’” Id. (quoting Hooper, 214 S.W.3d at 16).

A conclusion reached by speculation is not sufficiently based on facts or evidence to

support a finding beyond a reasonable doubt. Id. (citing Hooper, 214 S.W.3d at 16).




 APPELLANT’S BRIEF                                                      PAGE 20 OF 39
If the evidence presented at trial raises only a suspicion of guilt, even a strong one,

then that evidence is insufficient to convict. Richard Winfrey v. State, 323 S.W.3d

875, 882 (Tex. Crim. App. 2010). In circumstantial evidence cases, it is unnecessary

for every fact to point directly and independently to the defendant‘s guilt; it is

enough if the finding of guilt is warranted by the cumulative force of all of the

incriminating circumstances. Megan Winfrey, 393 S.W.3d at 778; Temple v. State,

390 S.W.3d 341, 359 (Tex. Crim. App. 2013).

       An alternative - but equally fatal for the State - way of viewing this issue is

 to argue that the evidence was legally insufficient to show that TMIC’s pecuniary

 interest had a value of $20,000 or more but less than $100,000. Section 32.46 of

 the Texas Penal Code, regarding securing execution of a document by deception,

 does not define the term “pecuniary interest.” See Tex. Penal Code Ann., Sec.

 32.46(a)(1). Thus, the term is to be given its plain and ordinary meaning. See

 Goldstein, 803 S.W.2d at 791. The Dallas court of appeals has stated that

 “pecuniary” is a synonym for “financial” and that “pecuniary interest” means a

 direct interest related to money. Fisher v. State, 803 S.W.2d 828, 830 (Tex.

 App.—Dallas 1991, pet. ref’d).

      Logic demands that the State bear the burden of segregating the valid work

from the allegedly fraudulent work. See Sowders v. State, 693 S.W.2d 448, 450

(Tex. Crim. App. 1985) (when the State alleges an exact value for stolen property, it




 APPELLANT’S BRIEF                                                         PAGE 21 OF 39
need not prove the exact value pled, but must only prove a value sufficient to satisfy

the jurisdictional requirement of the State’s pleading). See Nitcholas v. State, 524

S.W.2d 689, 691 (Tex. Crim. App. 1975).

         Because the State failed to fully segregate the properly billed amounts from the

amounts that were based on alleged deception or fraud, there was no legally

sufficient evidence to establish the jurisdictional limits of this offense, and the State

failed to satisfy its burden. Sowders, 693 S.W.2d at 450; Nitcholas, 524 S.W.2d at

691. See Lehman, 792 S.W.2d at 84; Simmons, 109 S.W.3d at 472. See also Lee, 29

S.W.3d at 75. To hold otherwise would allow the jury to convict Appellant on

conduct that was decidedly not fraudulent or deceptive. Rather, the jury had to

speculate as to the amounts that were proper by giving “credits” to NTME. See

Lehman, 792 S.W.2d at 84; Simmons, 109 S.W.3d at 472. See also Lee, 29 S.W.3d

at 75.

         4.    A fatal variance existed between the State’s
               pleading and proof regarding the form HCFA 1500.

         The undisputed evidence established that the actual form submitted by NTME,

and on which TMIC based its decision to pay NTME, was a CFS form, not an HCFA

1500 form. [3 RR14, 16, 27; State’s Exhibit 3]

         The variance at issue is a non-statutory fact defining an allowable unit of

prosecution. See Fuller v. State, 73 S.W.3d 250, 257 (Tex. 2002) (Keller, P.J.,

concurring). The question is the method by which Appellant is alleged to have


 APPELLANT’S BRIEF                                                         PAGE 22 OF 39
committed an act of deception on which TMIC relied when executing a document.

The testimony of Lena Shockley, NTME’s office manager, illustrates that Appellant

did not know why NTME’s claims were being denied. [5 RR 60-68] Therefore,

this Court should not conclude that the variance was immaterial; rather, this Court

should enter a judgment of acquittal on this charge. Id., at 257.

                                    ISSUE TWO

      The trial court erred in refusing to admit evidence that TMIC
       provided funding to the State’s prosecutors who prosecuted Appellant.


      A. A financial relationship exists between the State and TMIC.

      A financial relationship existed between the Travis County Criminal District

 Attorney’s Office, and particularly with respect to the two prosecutors who handled

 this case against Appellant, and the alleged victim, Texas Mutual insurance

 Company (“TMIC”). TMIC pays for the salaries of two prosecutors, one paralegal

 and one part-time staff within the Workers’ Compensation Fraud Unit of the DA’s

 Public Integrity Unit. [5 RR 60-68] As a result, TMIC, the alleged victim in this

 case, actually pays the salaries of the two prosecutors – Ms. Donna Crosby and Ms.

 Meg Brooks – who prosecuted Appellant for this matter.

      That financial relationship should have been disclosed to Appellant’s counsel

 before trial. Furthermore, when Appellant’s counsel learned that the purported

 “victim” of Appellant’s alleged misconduct had funded the very staff that




 APPELLANT’S BRIEF                                                      PAGE 23 OF 39
prosecuted Appellant for this case, Appellant was entitled to present evidence to the

jury of the financial relationship between TMIC and the State.

     Based on the discovery of this information, Defendant’s counsel informed the

trial court of his desire to question Ms. Crosby, in front of the jury, about the

financial relationship between TMIC and the DA’s Office. [5 RR 60-83] However,

the trial court denied Appellant the right to present evidence to the jury of the

financial relationship between TMIC and the State. [5 RR 83]

     By refusing to permit Appellant to present such evidence to the jury, the trial

court committed reversible error.

     1.     Appellant first learned of a financial relationship
            between State and TMIC during trial.

     At some point during the trial, and for reasons that Appellant’s counsel cannot

specifically recall, Appellant’s counsel asked Ms. Donna Crosby, the lead attorney

for the State, if there was some sort of relationship between TMIC and the Travis

County Criminal District Attorney’s Office (“DA’s Office”). The record does not

reflect whether Appellant’s counsel asked Ms. Crosby specifically if TMIC

provided funding to the DA’s Office, or if he asked her a more general question that

led to Ms. Crosby’s eventual revelation that TMIC provides financial funding to the

DA’s office to prosecute allegations of worker’s compensation fraud. Before that

moment during trial, neither Ms. Crosby nor any other person representing the State

had ever revealed to Appellant’s counsel that TMIC provides funding to the DA’s



APPELLANT’S BRIEF                                                         PAGE 24 OF 39
office specifically for the salaries of Ms. Crosby and Ms. Brooks, and for the

salaries of any other employees of the DA’s office. [5 RR 60-68]

     Before calling one of the State’s witnesses out of order, and after the State had

initially rested, State’s attorney Donna Crosby informed the Court about

Appellant’s counsel’s desire to call Ms. Crosby as a witness at trial:

     Ms. Crosby (to Court):. [Defense] Counsel has indicated that he wants to call
     me as a witness. I would request that be outside the hearing of the jury.

     Court: That’s fine.

[5 RR 4]

     After testimony from other witnesses, the trial court excused the jury and

allowed testimony from Ms. Crosby regarding the State’s unusual (and previously

undisclosed) relationship with TMIC:

     Appellant’s counsel (“Q”): And what division are you assigned to, or what
     section of the DA’s office are you assigned to?

     Ms. Crosby (“A”): The Public Integrity Unit.

     Q: And how long have you been in that unit?

     A: Oh, I’d be guessing, but I’d say the bulk of my time in the DA’s office has
     been in the Public Integrity Unit.

     Q: Now, you indicated to me that Texas Mutual Insurance Company provides
     funding for your position. Did I understand that correctly?

     A: My division.

     Q: Can you tell me how Texas Mutual Insurance Company provides funding
     for your division?



APPELLANT’S BRIEF                                                        PAGE 25 OF 39
   A: I really don’t know, because I don’t get myself involved in that process. I
   think that they deal with our admin people. Our admin people deal with
   whatever budget we’re going to have, and they get that budget cleared with
   whoever they deal with over at TMI.

   Q: What do you mean they get with budget people at TMI?

   A: Well, TMI pays for the unit, but the administrative division of our office
   deals with that issue. I don’t ever get involved in budget issues.

   Q: Is it your understanding that Texas Mutual Insurance Company pays for
   the entire Public Integrity Unit?

   A: No, not for the entire Public Integrity Unit.

   Q: What is your understanding of what they pay for?

   A: That would be speculation. All I know is that they pay for the unit, that
   being Worker’s Comp Fraud Unit.

   Q: Well, who is in the Worker’s Comp Fraud Unit?

   A: Well, my question – because I think it was a very broad question, and I’m
   trying to figure out – because I don’t want to give misinformation.

   Court: Are you asking how many attorneys work –

   Q: I’m asking how many staff or attorneys are in the Worker’s Comp Fraud
   Unit that Texas Mutual Insurance Company pays for.

   A: Okay. There are two attorneys, currently a paralegal. And I think we still
   have a position open for a part-time office specialist. And I said “I think”
   because that particular position may change.

   Q: And do you know how much it is – how much money it is each year that
   Texas Mutual Insurance Company provides?

   A: No.




APPELLANT’S BRIEF                                                    PAGE 26 OF 39
   Q: But my question is: Of those three-and-a-half people, Texas Mutual
 Insurance Company provides 100 percent of the financing for them?

  A: That could be true, but with a qualifier. There are other people who assist
 me, too, that are not funded by Texas Mutual.

   Q: And do you prosecute workers’ comp fraud cases when the carrier is
 different than Texas Mutual Insurance Company?

  A: I have in the past. And I will do so in the future, if it’s a situation where
 we can prosecute it.

   Q: What percentage of your time do you think you spend on cases in which
 Texas Mutual Insurance Company is the victim, or the alleged victim, of
 insurance fraud?

   A: So it depends on which case I’m working on at any particular time. . . . .
 But, if I had to do percentages this year, I think the bulk of my time this year has
 been spent on Texas Mutual cases. . . .

   Q: Have you ever prosecuted – I don’t mean go to trial, but have you ever
 prosecuted a case in which Texas Mutual Insurance Company was not at least
 one of the alleged victims? In other words, in all your cases, is Texas Mutual
 always involved in the workers’ comp fraud cases?

   A: With regard to workers’ comp fraud, if I’m understanding your question, I
 have worked with other carriers, but I wouldn’t say that it’s the bulk of my
 workload. . . .

   Q: When you work with other carriers, is Texas Mutual Insurance Company
 always involved in those cases, also.

   A: I believe so.

   Q: With the exception of that case that you tried, when you prosecute
   workers’ compensation fraud case, is Texas Mutual Insurance Company
   always one of the alleged victims in that case?

   A: Yes, one of the alleged victims, but there could be other victims.




APPELLANT’S BRIEF                                                      PAGE 27 OF 39
     Q: And how long has Texas Mutual Insurance Company been providing
     funding for your division.

     A: Since it’s inception.

     Q: Since the inception of the unit?

     A: Yes. In fact, I started the unit.

     Q: So when did you start the Workers’ Comp Fraud Unit?

     A: I don’t know. I think I’ve been doing it about 14 years.

     Q: And Texas Mutual Insurance Company has always provided funding at
     that time?

     A: Yes.

     Q: And the Workers’ Comp Fraud Unit is a subsection of the Public Integrity
     Unit?

     A: Yes.

[5 RR 60-68] Ms. Crosby also testified that she presents her cases to the Grand

Jury. [5 RR 70]

     Following brief direct examination of Ms. Crosby by her co-counsel, the trial

court had a long discussion with all counsel regarding whether the information

about the financial relationship between TMIC and the Travis County Criminal

District Attorney’s Workers’ Compensation Fraud Unit – as revealed by Ms.

Crosby during her testimony – should be presented to the jury. [5 RR 70- 83]

Appellant’s counsel argued that such information was highly relevant to the case

and should be admitted:



APPELLANT’S BRIEF                                                     PAGE 28 OF 39
     Appellant’s counsel: Judge, I’ll tell you, I tried to subpoena the General
     Counsel of Texas Mutual Insurance Company. She’s out of the country. I
     didn’t know this information, until Monday or Tuesday. It somehow came out
     in our discussion.

     Ms. Crosby: It’s not something I would hide, so I just told you.

     Appellant’s counsel: Well, it’s certainly exculpatory, and the jury should
     know this information. It’s certainly relevant. If it’s not exculpatory, it
     certainly is relevant to the motivation of this lawsuit.

     Court: Well, it’s certainly is not exculpatory.

     Appellant’s counsel: It’s not exculpatory. It’s relevant. I guess it could be
     considered exculpatory, if the jury believes that it diminishes the reasons why
     this case is brought in the first place. And that’s going to fit into my
     argument. I promise you that. So I think it should come in. It’s absolutely
     relevant. I’ve never heard it happen in any other criminal case, where you
     have the alleged victim providing the funding for the prosecutors who are
     bringing the case against your client. That just doesn’t happen, outside of this
     context. And it’s not something that was available from Texas Mutual’s
     website, or from any of the blurbs on the blogs or press releases that they issue
     on their various successes from Ms. Crosby on behalf of the Texas Mutual
     Insurance Company. It was not clear to me that there was that connection. So
     I didn’t find about it, until Monday or Tuesday [trial started on Monday].

     Court: All right. So you think that it’s important to get in front of the jury
     the fact that the prosecutor is paid her salary, basically, by virtue of Texas
     Mutual Insurance?

     Appellant’s counsel: Not only that they pay her salary, but that the majority
     of cases she works on, the vast majority of the cases she works on, include
     Texas Mutual Insurance Company as one of the alleged victims.

[5 RR 68–73] The parties argued strenuously over whether information about the

State’s financial relationship with the alleged victim, TMIC, should be admitted

into evidence:




APPELLANT’S BRIEF                                                       PAGE 29 OF 39
     Ms. Crosby: Well, how is that relevant as to whether or not he committed the
     crime?

     Court: Right. I guess that’s the issue.

     Appellant’s counsel: I don’t mean any offense, but I certainly can make the
     argument: If you’ve got your own counsel, who can come and use the threat
     of criminal prosecution, as opposed to just a civil fraud case, as your attorney,
     because you’re paying for them, you are supporting this unit, that is powerful
     information that the jury ought to find out.

     Ms. Crosby: I work for the DA’s office. I don’t work for Texas Mutual.

     Appellant’s counsel: And she gets to tell them that, Your Honor. But they
     ought to at least have that information to say: Hey, if the only tool in the
     toolbox is a hammer, maybe everybody looks like a nail. You know, if
     they’ve got somebody who is willing to use criminal prosecution as a threat to
     these folks out here who are doing stuff, that’s a pretty powerful incentive.

[5 RR 73-74]

     The Court stated that he would not permit such information to be admitted in

front of the jury, even if Appellant tried to call a witness other than the prosecutor,

Ms. Crosby, to testify about the relationship between TMIC and the State:

     Appellant’s counsel: So you’re granting the State’s motion to exclude any
     evidence about the relationship between the DA’s office and Texas Mutual
     Insurance Company, in which Texas Mutual Insurance Company provides
     funding for two prosecutors and one paralegal and a part-time person in the
     Workers’ Comp Fraud Unit?

     Court: It does seem to me that it is irrelevant. And in terms of Rule 401, it’s
     not relevant. Also, even if relevant, it clearly is a violation of 403, so I will be
     excluding that.

[5 RR 77-83]

     2.     Ethical standards prohibiting conflicts of interest between State



APPELLANT’S BRIEF                                                          PAGE 30 OF 39
             and an alleged victim made TMIC’s relationship relevant.

     The American Bar Association (“ABA”) Criminal Justice Standards.

According to these standards:

     If the law of the jurisdiction permits the acceptance of financial or resource
     assistance from non-governmental sources, the decision to accept such
     assistance should be made with caution by the chief public prosecutor or an
     accountable designee after careful consideration of:

     (i)     The extent to which the law of the jurisdiction permits the acceptance of
             financial or resource assistance;

     (ii)    The extent to which the offer is in the public interest, as opposed to an
             effort to achieve the limited private interests of the non-governmental
             sources;

     (iii)   The extent to which acceptance may result in foregoing other cases;

     (iv)    The potential adverse impact on the equal administration of the criminal
             law;

     (v)     The extent to which the character and magnitude of the assistance might
             unduly influence the prosecutor’s subsequent exercise of investigative
             and prosecutorial discretion;

     (vi)    The likelihood that the community may view accepting the assistance as
             inconsistent with the fair and equal administration of criminal justice;

     (vii) The likelihood that accepting assistance from private sources may
           create an appearance of undue influence over law enforcement; and

     (viii) The extent to which financial or resource assistance would enhance or
            enable the investigation of criminal activity.

Standards, Section 2.17(b), a true and correct copy of which is attached hereto as

Appendix 1.




APPELLANT’S BRIEF                                                         PAGE 31 OF 39
     The ABA’s Standards go on to state:

     The prosecutor, consistent with the law of the jurisdiction, should disclose
     significant non-governmental assistance to relevant legislative or public
     bodies having oversight over the prosecutor’s office and, when appropriate,
     the public.

ABA Standards, Section 2.17(e) (emphasis added).

     More importantly, the ABA Standards also state:

     Non-governmental assistance should be disclosed to affected parties as part of
     the discovery process.

ABA Standards, Section 2.17(f) (emphasis added).

     The actions of the State in accepting a grant from TMIC to fund the very

prosecution at issue in this case essentially constitutes an improper delegation of the

prosecutor’s public duties to a private attorney for TMIC. Even though Ms. Crosby

is, ostensibly, an employee of the DA’s office and not of TMIC, it is clear that a

primary part of her duties as a prosecutor for the Travis County Criminal District

Attorney’s Office is to prosecute allegations of fraud against TMIC. (TMIC is

always a “victim” in cases that Ms. Crosby prosecutes involving workers’

compensation fraud).

     The decisions made by a prosecutor in setting enforcement priorities have far

reaching impact on commerce, politics, and the everyday lives of those who must

order their conduct and behave accordingly. Roger A. Fairfax, Jr., “Delegation of

the Criminal Prosecution Function to Private Actors,” 43 University of California-




APPELLANT’S BRIEF                                                        PAGE 32 OF 39
Davis L. J. 411, 428 (2009). Prosecutorial decisions regarding whether and what to

investigate and what tactics and tools to use in the course of an investigation can

have grave consequences for those who fall under the government’s scrutiny. Id.

     Virtually all of the decisions made by a prosecutor to prosecute an individual

for alleged criminal activity are, “for the most part, unreviewable.” Id., at p. 429.

As a result, a public prosecutor has a remarkable impact on the lives and liberty of

those in society who fall within the law’s mandates. Id., at p. 430. The United

States Supreme Court observed the unique position of the public prosecutor in

Berger v. United States:

     The United States attorney is the representative not of an ordinary party to a
     controversy, but of a sovereignty whose obligation to govern impartially is as
     compelling as the obligation to govern at all; and whose interest, therefore, in
     a criminal prosecution is not that it shall win a case, but that justice shall be
     done.

295 U.S. 78, 88 (1935). Fifty years after its decision in Berger, the Supreme Court

affirmed the obligation of a public prosecutor to strive toward justice above all else:

     Between the private life of the citizen and the public glare of criminal
     accusation stands the prosecutor. That state official has the power to employ
     the full machinery of the state in scrutinizing any given individual. Even if a
     defendant is ultimately acquitted, forced immersion in criminal investigation
     and adjudication is a wrenching disruption of everyday life. For this reason,
     we must have assurance that those who would wield this power will be guided
     solely by their sense of public responsibility for the attainment of justice.

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)

(emphasis added).




APPELLANT’S BRIEF                                                        PAGE 33 OF 39
     According to Professor Fairfax, the impartiality to be exercised by a public

prosecutor constitutes a bedrock principle of our criminal justice system:

     [T]he public prosecution norm – the notion that criminal prosecution authority
     properly rests exclusively with the state – is a source of legitimacy for the
     criminal justice system. The fact that prosecutions are brought not in the
     name of an individual but in the name of the state both requires and produces
     public confidence in the criminal process. In the same vein, that the actor
     wielding criminal prosecutorial authority is a public lawyer is of tremendous
     significance.

Fairfax, “Delegation,” 43 UC-Davis L. J. at p. 433. As Professor Fairfax stated,

“[I]t does not take much imagination to envision the potential for corruption and

conflicts of interest when a lawyer who controls the tremendous power of criminal

investigation and prosecution also represents private clients.” Id., at p. 438 (citation

omitted).

     Professor Fairfax’s article addressed the potential for conflicts of interest in a

jurisdiction that permits its public prosecutor to maintain a part-time private

practice, which is not the case here. See Id., at p. 413. However, the facts, adduced

outside the presence of the jury during the middle of trial, and discovered by

Appellant’s counsel quite by accident, reveals that the State has a unique financial

arrangement with the alleged “victim,” TMIC, and should be treated as if the State

acted in this case as TMIC’s private counsel.

     It follows that if an alleged crime victim provides financial support to a state

prosecuting authority, a defendant who is being prosecuted by that state prosecuting




APPELLANT’S BRIEF                                                         PAGE 34 OF 39
 authority should: (1) be informed prior to trial of the financial relationship between

 the alleged crime victim and the prosecutor; and (2) be permitted to adduce

 evidence at trial of the financial relationship between the prosecutor and the alleged

 crime victim.

      Such information is not only relevant; it may be among the MOST relevant

 information in the case.

      3.     Trial court committed harmful error by refusing
             to permit Defendant to present evidence of
             the relationship between the State and TMIC.

      Evidentiary rulings admitting or excluding evidence are committed to the trial

court’s sound discretion. Reasonable minds can differ on issues such as the

relevance of a particular piece of evidence, and as long as the trial court’s ruling was

at least within the zone of reasonable disagreement, an appellate court should not

substitute its reasonable perception for that of the trial judge. See Montgomery v.

State, 810 S.W.2d 272, 291 (Tex.Crim.App. 1990) (op’n on rehearing).

      In this case, the trial court’s exclusion of evidence about the financial

relationship between the State and TMIC, the alleged victim, was painfully relevant.

The jury should have been allowed to know that TMIC paid the salaries of the two

prosecutors who were prosecuting Appellant for his alleged fraudulent conduct

against TMIC, especially when in-house fraud investigators from TMIC, rather than

an independent law enforcement agency, had conducted the investigation that led to




 APPELLANT’S BRIEF                                                        PAGE 35 OF 39
Appellant being indicted by Ms. Crosby, who testified that she presents her own

cases to the Grand Jury. A jury reasonably could have inferred that the DA’s office

acted as the personal attorneys for TMIC with respect to this case, and such a

revelation would have complemented Appellant’s argument that TMIC was strong-

arming Appellant because it did not want to compensate him for the full 16 units that

Appellant believed was compensable.

             The State should have disclosed information about its financial

relationship with TMIC to Appellant well before trial, but the trial court certainly

should have allowed Appellant to present to the jury evidence of the relationship

between TMIC and the two prosecutors who brought this case.

      No judgment may be reversed on appeal on the ground that the trial court

made an error of law unless the error complained of probably caused the rendition of

an improper judgment. Tex. R. App. P. 44.1(a)(1). See Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Beam v. A.H. Chaney, Inc., 56

S.W.3d 920, 924 (Tex. App.—Fort Worth 2001, pet. denied) (court found no harmful

error after holding that evidence should have been excluded pursuant to Rule

193.6[a]).

      The trial courts exclusion of any testimony regarding the financial relationship

between TMIC and the State constituted harmful error, and this matter should be

reversed and remanded for a new trial.




 APPELLANT’S BRIEF                                                       PAGE 36 OF 39
                                          IV.

                                      PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellant Howard Thomas

Douglas moves this Court to reverse the verdict and judgment of the trial court and

render a verdict of not guilty in favor of Appellant,; or, in the alternative, find that

the trial court erred in excluding evidence of the financial relationship between the

State and the alleged victim, and remand this matter to the trial court for a new

trial.



                                       Respectfully submitted,

                                       /S/ Craig M. Price
                                       Craig M. Price
                                       State Bar No. 16284170
                                       cmp@hammerle.com
                                       Hammerle Finley Law Firm
                                       2871 Lake Vista Dr., Suite 150
                                       Lewisville, Texas 75067
                                       Tel: (972) 436-9300
                                       Fax: (972) 436-9000
                                       Attorney for Appellant




APPELLANT’S BRIEF                                                         PAGE 37 OF 39
                         CERTIFICATE OF SERVICE

      This is to certify that on April 23, 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney's Office,

Travis County, PO Box 1748, Austin, Texas 78767, by electronic e-service.

                                           /S/ Craig M. Price
                                           Craig M. Price




                     CERTIFICATE OF COMPLIANCE

      The undersigned counsel hereby certifies, pursuant to Tex. R. App.

9.4(i)(4), that the foregoing Appellant’s Brief contains a total of 11, 395

words.

                                           /S/ Craig M. Price
                                           Craig M. Price




     APPELLANT’S BRIEF                                       PAGE 38 OF 39
                           APPENDIX

1. Judgment of Conviction by Jury

2. Charge of the Court

3. ABA Standards on Prosecutorial Investigations




APPELLANT’S BRIEF                                  PAGE 39 OF 39
                                               CASE No, D-1-DC-12-900059                               couNT I
                                                         INCIDENT NO./TRN: 0119803593
      ~r



THE.STATE OF TEXAS                                                                 §          IN THE 33JST DISTRICT
                                                                                   §
V.                                                                                 §          COURT
                                                                                   §
HOWARD THOMAS DOUGLAS                                                              §          TRAVIS         COUNTY,     TEXAS
                                                                                   §
STATE lD    No.: TX05456675                                                        §

                                       JUDGMENT OF CONVICTION BY JURY
Judge Presiding:          HoN.   BOB PERKINS                                       Entered:
                                                                                                           6/19/2014
                                                                                   Attorney for
Attorney for State:       DONNA CROSBY                                             Defendant:
                                                                                                          CRAIG PRICE
Offense for which Defendant Convicted:
SECURING EXECUTION OF A DOCUMENT BY DECEPTION
Charging Instrument:                                                               Statute for Offense:
INDICTMENT                                                                         32.46 (b)(5) Penal Code
Date of Offense:
12/20/2007 THROUGH 12/16/2009
Degree of Offense:                                                                 Plea to Offense:
3RD DEGREE FELONY                                                                  NOT GUILTY
Verdict of Jury:                                                                   Findings on Deadly Weapon:
GUILTY                                                                             N/A
Plea to 1•• Enhancement                                           Plea to 2nd Enhancement/Habitual
Paragraph:                               NIA                      Paragraph:                             N/A
Findings on 1•• Enhancement                                       Findings on znd
Paragraph:                              __N/~                     Enhancement/Habitual Paragraph:        N/A
Punished Assessed by:                                Date Sentence Imposed:                   Date Sentence to Commence:
COURT                                                6/19/2014                                               6/19/2014
Punishment and Place
                               FIVE (5) YEARS INSTITUTIONAL DIVISION, TDCJ
                                            THIS SENTENCE SHALL RUN                     CONCURRENTLY.
            SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMlJNI'l'Y SUPERVISION FOR
                                         Court Costs:                                     Restitution Payable to:
                                                                                                                                    -------
$                                        $354.00                $                         0 VICTIM (see below) [83 AGENCY/AGENT (see below)
     ~ Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part _hereof.
Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was          N/A .
                   If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.
                   From 6/6/2013 to 61812013              From         to              From         to
Time               From          to              From           to                     From       to
Credited:
                   If Defendant is to serve sentence in county jail or is given credit toward fine and costs. enter days credited below.
                   N/A DAYS            NOTES: N/A
      All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference.
          This cause was called for trial in Travis County, Texas. The State appeared by her District Attorney.
          Counsel/ Waiver of Counsel (select oruD
IX! Defendant appeared in person with Counsel.
0 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
          It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read to the
jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record.
          The jury heard the evidence submitt.ed and argument of counsel. The Court charged the jury as to its duty to determine the
guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its
verdict in the presence of Defendant and defense counsel, if any.
                                                                                                                                           190
                                             Judgment_of_Convict>on_by _Jury doc
                                                                                                                       APPENDIX 1
                                                                                                          Page I of2
   I
    ~




          The Court received the verdict and ORDERED it entered upon the minutes of the Court
          Punishment Assessed by Jury I Court I No election_{select one)
 0 Jury. Dlrt'endant entered a plea and filed a written election to have the jury assess punishment. The jmy heard evidence relative to
 the q~stion of ptmishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation,
 the jury was brought into Court, and. in open court, it returned ita verdict as indicated above.
 ~ Court. Defendant elected to have the Court assess punishment. After hearing evidence relative to the question of punishment, the
 Court assessed Defendant's punishment as indicated above.
0 No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment. After hearing
evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above.
          The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is
GUILTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable
provisions of TEX. CODE CRIM. PROC. art. 42 . 12 § 9.
          The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costs, and
restitution as indicated above.
          Punishment Options (select one)
fSI Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the
Sheriff of this Co1mty to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court
ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the
custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence . The Court ORDERS that upon release
from confinement, Defendant proceed immediately to the TRAVTS COUNTY DISTRICT CLERK'S OFFICE, 509 WEST 11TH ST.
SUITE 1.400. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court
costs, and restitution as ordered by the Court above
0 County Jail-Confinement I Confinement in Lieu of Payment. The C,ourt ORDERS Defendant immediately committed to
the custody of the Sheriff of Travis County, Texas on the date the sentence is to commence. Defendant shall be confined in the
Travis County Jail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed
immediately to the TRAVIS COUNTY SHERIFF'S BONDING OFFICE, 509 WEST 11TH ST. SUITE 1.600. Once there, the C..ourt
ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the
Court above.
0 Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed
immediately to the Office of the Travis County Sheriff. Once there, the Court ORDERS Defendant to pay or make arrangements to
pay all fines and court costs as ordered by the Court in this cause.
          Execution I Suspension of Sentence (select one)
~ The Court ORDERS Defendant's sentence EXECUTED.
0 The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference.
          The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.
                             Furthermore, the following special findings or orders                           a.IH!~




Signed and entered on .June 23, 2014                                         x-d-~-
                                                                             331ST
                                                                             JUDGE PRESIDING




Clerk: MM




                                                                                                              Right Thumbprint




                                                                                                                                 191
                                       Judgment_of_Convlction_by _Jury doc                     !'nge 2 of2
                                    DC                   BK14139 PG346




                                     DlDC 12 900059

THE STATE OF TEXAS                            )(                  IN THE 33lst DISTRICT

vs.                                           )(                  COURT OF

HOWARD THOMAS DOUGLAS                         )(                  TRAVIS COUNTY, TEXAS


                                    CHARGE OF THE COURT

Ladies and Gentlemen of the Jury:

     The defendant, HOWARD THOMAS DOUGLAS, stands charged by indictment with the
  offense of securing execution of document by deception, alleged to have been committed in
  Travis County, Texas, beginning on or about the 201h day of December, 2007, and continuing
  to on or about the 161h day of December, 2009. To this charge the defendant has pleaded not
  guilty. You are instructed that the law applicable to this case is as follows:

                                                   I.

     A person commits the offense of securing the execution of a document by deception if,
  with intent to defraud or harm any person, he, by deception, causes another to sign or execute
  any document affecting property or service or the pecuniary interest of any person.

                                                   II.

     "Deception" means creating or confirming by words or conduct a false impression oflaw
  or fact that is likely to affect the judgment of another, in the transaction, and that the
  defendant does not believe to be tme;
                                                 III.

     A person acts intentionally, or with intent, with respect to the nature of his conduct or to a
  result of his conduct when it is his conscious objective or desire to engage in the conduct or
  cause the result.

                                                   IV.

     A person is criminally responsible if the result would not have occurred but for his
  conduct, operating either alone or concurrently with another cause, unless the concurrent
  cause was clearly sufficient to produce the result and the conduct of the actor was clearly
  insufficient.

     A person is nevertheless criminally responsible for causing a result if the only difference
  between what actually occurred and what he desired, contemplated, or risked is that:


        ( l) a different offense was committed; or

        (2) a different person or property was injured, harmed, or otherwise affected.
                                                                     Filed in The District Court
                                                                      of Travis Co40ty, Texas

                                                                           MAY 10201~
                                                                     At     ;:t·.oo~ .....
                                                                     Amalia Rodriguez-Me;;{)za, Clerk
                                                                                                        171
                                                                                     APPENDIX 2
                                DC              BK14139 PG347




                                           v.
   Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a
reasonable doubt, that the defendant, HOWARD THOMAS DOUGLAS as alleged in the
indictment, pursuant to one scheme or continuing course of conduct which began on or about
the 20th day of December , 2007 , and continuing to on or about the 16th day of December,
2009,in Travis County, Texas, said defendant did then and there with intent to defraud or
harm the TEXAS MUTUAL INSURANCE COMPANY, by deception create or confirm by
words or conduct a false impression of fact , to wit: the said Howard Thomas Douglas caused
to be submitted to the TEXAS MUTUAL INSURANCE COMPANY a form HCF A (Health
Care Financing Administration) 1500 seeking payment for services rendered , said services
were as follows: 16 units billed under CPT (current procedural terminology) code 97750,
when in fact, 16 units of service were not rendered in accordance with the Texas Department
of Insurance Division of Workers Compensation Medical Fee Guidelines not believing it to
be true, that was likely to affect the judgment of the said Texas Mutual Insurance Company in
the transaction, which deception caused the Texas Mutual Insurance Company to sign or
execute documents affecting its property, service or pecuniary interest, where the value of the
property, service or pecuniary interest was more than $20,000 but less than $100,000 and said
payments are of the tenor following:




                                                                                                  172
                                   DC                      BK14139 PG348




 Name                           Date of Service            Ammmrnt         Amount
                                or BCFA Date               Charged         Paid
 VESS,CHUCK                     .3/20/2008                 $612.00         $533.76

GILLINGHAM, MARK                5/26/2009                  $612.00         $337.84

ESPARZA, JAVIER                 3/13/2008                  $612.00         $580.16

BlANTON, MARCUS                 5/20/2008                  $612.00         $592.32

BOOTH, CHAD L                   2/8/2009                   $612.00         $612.00

ETIINGER, BRAD                  2/26/2008
                                            -              $612.00         $533.76

THOMAS, FRANIUE L               1/15/2009                 $612.00          $612.00
                 --                               .
BOLES, BARBARA                  4128/2009                 $612.00          $61,2.00

MORENO, ALBERT                 5/8/2008                   $612.00      $592.32
                           -
HARRISON, EUNICE               2/23/2009                  $612.00      $612.00

WWERY, BilLY L.                1/22/2009                  $612.00      $612.00

RODRIQUEZ, GUADAlUPE           4/22/2008                  $612.00      $592.32

SHEEHAN, MICHAEL               .5/1/2008                  $612.00      $533.76

HEARD, LEE A.                  4/9/2009                   $612.00      $296.24

BITNER, JESSE                  3/20/2008                  $612.00      $592.32

LIEBEL, lAURIE                 1/21/2009                  $612.00      $612.00

POZOS, NICOLAS
                      --       5/12/2008                  $612.00      $592.32

PARKER, CHARLOTTE              6/10/2008                  $612.00      $592.32

FIERRO, MACLOVIO V.            5/8/2008                   $612.00      $592.32

GREASON, RICHARD               4/10/2008                  $612.00      $612.00
                                                                                       --
DAVIS, PATRICK M.              2/26/2008                  $612.00      $533.76

DOCKRAY, JERRY                 3/9/2009                   $612.00      $612.00
                                                                                      -·-
MCGAHEY, TERI                  4/22!2008                  $612.00      $592.32

TALLEY, JUSTIN                 4/14/2008                  $612.00      $592.32

SHORT, WENDELL R.              4/22/2008                  $612.00      $222.12

SHORT, WENDELL R.              4/22!2008                  $612.00.     $370.36
                                           ....-----·-·
CHARLES, TONY                  5/26/2009                  $612.00      $612.00




                                                                                            17.3
                               DC                 BK14139 PG349




  THOMPSON, WILLIAM         5/12/2008             $612.00         $592.32

  MERCER, JACKIE            4/14/2008             $612.00         $592.32

  CAMACHO, JULIE            2/2/2009              $612.00         $612.00

 WIL'lON, JAMES             3/3/2008              $612.00         $533.76

 WHITE, LISA A.             5/20/2008            $612.00         $592.32
                                                                            --
 HEUAM, ROBERT L.           5!4!2009             $612.00         $490.44

 ARMSTRONG, SHANA M.        2/26/2008            $612.00         $533.76

 CLAYTON, FRANKLIN D.       2/12/2009            $612.00         $612.00

 PAWLOWSKI, PIOTR           6/5/2008             $612.00         $592.32

 GALLAMORE, CARNIE M        3/24/2008            $612.00         $533.76

 GALLAMORE, CARNIE M        3/24/2008            $612.00         $533.76

 MEDLEY, GARY               4/3/2008             $612.00         $592.32
                                           --·
 TIIOMAS, SHERMAN           5/13/2008            $612.00         $612.00

 GROUNDS, GEORGE G          5/8/2008             $612.00         $592.32
--=-:-:-----·----·-
 CALDWELL, JOHN             4/22/2008            $612.00         $592.32
r-·
 MORQUECHO, CARMEN          5/8/2008             $612.00         $592.32

 GOFF, TRICIA               5/20/2008            $612.00         $592.32

 VASQUEZ, PEDRO             4/18/2009            $612.00         $612.00
                                                            ·-
 MILLER, MARVIN             5/8/2008             $612.00         $592.32

 GONZALEZ, ROBERTO          4/14/2008            $612.00         $592.32

 JOHNSON, CHARLES G.        6/17/2009            $612.00         $612.00

 INFANTE, JULIAN            6/5/2008             $612.00         $592.32

 FLORES, JANIE
                 -          3/25/2009            $612.00         $612.00

 FARR,KEVIN                 10/21/2008           $612.00         $592.32

WATSON, CHET            5/8/2008                 $612.00         $592.32
                                        ·----
FALCON, SHANNA          4/14/2009                $612.00         $612.00
                        -
RAY, JAY                5/28/2008                $612.00         $.592.32

KINNAIRD, JANICE        2/23/2009                $612.00         $612.00




                                                                                 174
                                    DC       BK14139 PG350




NARANJO, FRED                  2!11/2009     $612.00                $612.00

BLACKSHIRE, RONALD             4/1.5/2009    $612.00                $612.00

STORME, RAYMOND                3/17/2009     $612.00                $612.00-

-ARREDONDO, RAMIRO D.          3/31/2009     $612.00                $612.00
                                                                                --
MORA, ANTONIO                  4/16/2009    $612.00                $612.00
                                                                              ·--·-
WILKERSON, TOMMY R.            4/15/2009     $612.00               $612.00

GUZMAN, ELIGIO                 2/23/2009    $612.00                $519.60
                          -
COOK, FRANCES                  3/26/2009    $612.00                $326.96
                              __.
                                ,
                                                                               --
RODRIGUES, RUDOLPH            6/15/2009     $612.00                $612.00

WASHBURN, TRACY W.            2/5/2009      $612.00                $612.00

HOLLAND, WILLIAM E            4/28/2009     $612.00                $612.00

BEAN, ROBERT N.               3/13/2009     $612.00                $326.96
                                                                                --
                                                             ...
                              1naoo9
                                                       ~--



HUNNICUTI, CYNTHIA D.                       $612.00                $612.00

FYVIE, GARY M.                2/2/2009      $612.00                $612.00

MOTTA BERRIOS, CARLOS         5/12/2009     $612.00                $521.40

WEFFLER, RODNEY R.                          $612.00
                                                        -          $612.00
                              2/23/2009

MUNGUIA, BARBARA L            51712009      $612.00                $612.00

ALTON, JAMES                  5/14/2009     $612.00                $612.00

PARR, JOSEPH G                5/21/2009     $612.00                $612.00--

SIMPSON, MONTE L              2/26/2009     $612.00                $612.00

SMITH, KEITH W.               2/16/2009     $612.00                $612.00

KALA, PABLO JR                2/11/2009     $612.00                $612.00

THOMPSON, TIMMY R.            1/8/2009      $612.00                $612.00

JARAMILLO, EFRAIN             5/1/2009      $612.00                $612.00
                      -
ROSE, DELLRON K.              3/26/2009     $612.00                $612.00

OVALLE, CAMELIA R.            1/30/2009     $612.00                $612.00

COLBERT, MICHAEL              517/2009      $612.00                $612.00
                                                                              --
DOMANSKI, CHRIS               5/28/2009     $612.00                $612.00




                                                                                      175
                                   DC                    BK14139 PG351




                            -
 GOMEZ, JIMMY C.                 2!23/2009               $612 ..00         $612.00

 TIIURMOND, MICHAEL              5/21/2009               $612.00           $326.96

 CRIPE, TERRY W.                 4/15/2009               $612.00           $612.00

 BEAVERS, DONALD K.              2/23/2009               $612.00           $612.00

THOMPSON, DAVID L                7/9/2009               $612.00            $612.00

HOKE, AARON                     3/6/2009                $612.00            $612.00

YOUNG, DARRELL
                                                                     -
                                6115/2009               $612.00            $612.00

'woODARD, EVAN
                            -   1n12o09                 $612.00            $612.00

WALKER, JAMES                   3/25/2009               $612.00            $519.60

WALKER, JAMES                   6/30/2009               $612.00            $612.00

ZURITA, LOUISETTE               4n!2009
                                                 --·-   $612.00            $612.00

GARZA, CUAUHTEMOC               4/9/2009                $612.00            $612.00

GUZMAN, LUIS G.                 2/18/2009               $612.00            $612.00

GARCIA, PEDRO                   4/28/2009               $612.00            $612.00
                       ..                                                            ·-
MAGNER, MARTIN              -- 3/13/2009                $612.00            $612.00

LEAL, RENE M.                   5/26/2009               $612.00          . $346.40 ·---

TUNNElL, JESSE                  3/25/2009               $612.00            $612.00

VASQUEZ, ROGELIO T.             3/30/2009               $612.00           $612.00

          GO                    3/27/2009               $612.00           $612.00

GILLESPIE, MARTIN               4/28/2009
                                                   -1-:----------
                                                     $612.00              $612.00
                                                                     -
CHICO, REBEKAH                  1/29/2009               $612.00           $612.00

DELEON, TOMAS                   7n!2009                 $612.00           $612.00
                                             -
REYNA, JESSE                    4/14/2009               $612.00           $612.00

CARILLO, RODRIGO                5/4/2009                $612.00           $612.00

TURNER, JAY                     4/14/2009               $612.00           $612.00
1-·
NEVILLES, GARY II               6/2/2009                $612.00           $612.00

PERKINS, ROBERT J.              3/10/2009               $612.00           $612.00

HERNANDEZ, JOSSIAS M            5!21/2009               $612.00           $612.00




                                                                                          176
                                    DC              BK14139 PG352




TORRES, MARGARITO                4/9/2009          $612.00
                                                                     ---
                                                                      $612.00

MCKINNEY, LEVI                   4/14/2009         $612.00            $612.00

ROSAS, DANNY                     6/4/2009          $612.00            $612.00

JOHNSON, TIMOTHY                 5127/2009         $612.00            $612.00

WISE, JAMES A                    6/18/2009         $612.00            $612.00
                                                             ---
MASCORRO, ROBERT E.              6/1/2009          $612.00            $612.00

REID, BONITA                     6/3/2009          $612.00            $612.00

TORRES, JUAN M.                  6/18/2009
                                                        --·
                                                   $612.00            $612.00
                          ---
JACKSON, JOANN                   4/23/2009         $612.00            $612.00

ESTRADA, JUAN                    4/22/2009         $612.00            $612.00

MERAZ, JESUS                     6/18/2009         $612.00
                                                                -·    $612.00

TROUT, SANDRA K.                 5/26/2009         $612.00            $612~oo-

WEESE, NANCY K.                  5/5/2009          $612.00            $612.00

WHITFIELD, NORMA J.              7/2/2009          $612.00            $612.00
                                                                                --
TURNER, JOHN R.                  9/22!2009         $612.00            $520.20

FISHER, DEREK                    10/22/2009        $612.00            $347.68

DE GRACIA, PAUL                  9/16/2009         $612.00           $612.00

FRANCO, MIGUEL                   11/20/2009        $612.00            $612.00

WHITLEY, KATHLEEN                12!212009         $612.00
                                                                           --
                                                                     $612.00

DAVIDSMEYER, ROBERT L            10/13/2009        $612.00           $6.12

DAVIDSMEYER, ROBERT L.           10/13/2009        $612.00           $605.88

BOATRIGHT, DANNY                 11n12oo9
                                              --   $612.00           $612.00

BAKER, LORIN                     10/22/2009        $612.00           $347.68

HILL, FRANK                      9/16/2009         $612.00           $612.00

RICCI, CORINNE
                  -·------··-·   10/13/2009        $612.00           $612.00

GUTIERREZ, ADAN                  10/9/2009         $612.00           $612.00
                                                                     ·--
STOUT, TIMOTHY E. SR             11/19/2009        $612.00           $520.20
                                                             ---··
CAGE, VERNON                     12/16/2009        $612.00           $520.20




                                                                                     177
                             DC               BK14139 PG353




VANOS, BRANDON             10!27/2009                         $612.00

GARCIA-BURCIAGA,           9/15/2009                          $612.00
ALFONS




Against the peace and dignity of the State.



                                              lffVM)~~~
                                                   Foreperson of the Grand Jury




                                                                                  178
                                   DC              BK14139 PG354




  you will find the defendant, HOWARD THOMAS DOUGLAS, guilty ofthe offense of
  Securing Execution of a Document by Deception and so say by your verdict, but ifyou do not
  so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by
  your verdict "Not Guilty."
                                              VI.

     You are further charged as a part of the law in this case that the state is not required to
  prove the exact date alleged in the indictment but may prove the offense, if any, to have
  been committed at any time prior to the presentment of the indictment so long as said
  offense, if any, occurred within seven years of the date of the Presentment of the
  indictment ; you are further instructed that the day the indictment was presented and the
  day ofthe offense, if any, occurred, shall not be computed within the seven year limitation
  period.
                                                VII.
     A conviction cannot be had upon the testimony of an accomplice unless the jury first
  believe that the accomplice's evidence is true and that it shows the defendant is guilty of the
  offense charged against him, and even then you cannot convict unless the accomplice's
  testimony is corroborated by other evidence tending to connect the defendant with the offense
  charged, and the corroboration is not sufficient if it merely shows the commission of the
  offense, but it must tend to connect the defendant with its commission.

     You are further instructed that the testimony of one accomplice witness is not sufficient
  corroboration of the other's testimony.

     You are further instructed that mere presence of the accused in the company of an
  accomplice witness shortly before or after the time of the offense, if any, is not, in itself,
  sufficient corroboration of the accomplice witness' testimony.

     You are charged that Tamara Wells and Lena Shockley were accomplices if any offense
  was committed, and you are instructed that you cannot find the defendant guilty upon the
  testimony of Tamara Wells and Lena Shockley unless you first believe that the testimony of
  the said Tamara Wells and Lena Shockley is true and that it shows the defendant is guilty as
  charged in the indictment; and even then you cannot convict the defendant, Howard Thomas
  Douglas , unless you further believe that there is other evidence in this case, outside the
  evidence of said Tamara Wells and Lena Shockley , tending to connect the defendant with the
  commission of the offense charged in the indictment and then from all the evidence you must
  believe beyond a reasonable doubt that the defendant is guilty.

                                                VIII.
In all criminal cases, the burden of proof is on the State. All persons are presumed innocent and

no person may be convicted unless each element of the offense is proved beyond a reasonable

doubt. The fact that the defendant has been arrested, confined, or indicted for, or otherwise

charged with an offense gives rise to no inference of guilt at his trial. The law does not require

the defendant to prove his innocence or produce any evidence at all. The presumption of

innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a




                                                                                                     179
                                    DC             BK14139 PG355




reasonable doubt of the defendant's guilt after a careful and impartial consideration of all the

evidence in the case.

       The prosecution has the burden of proving the defendant guilty and it must do so by

proving each and every element of the offense charged beyond a reasonable doubt and if it fails

to do so, you must acquit the defendant. It is not required that the prosecution prove guilt

beyond all possible doubt; it is required that the prosecutor's proof excludes all "reasonable

doubt" concerning the defendant's guilt.

       In the event you have a reasonable doubt as to the defendant's guilt after considering all

the evidence before you, and these instructions, you will acquit the defendant and say by your

verdict "Not Guilty."

      In a criminal case the law permits a defendant to testify in his own behalf but he is not

compelled to do so, and the same law provides that the fact that a defendant does not testify

shall not be considered as a circumstance against him. You will, therefore, not consider the fact

that the defendant did not testify as a circumstance against him; and you will not in your

retirement to consider your verdict allude to, comment on, or in any manner refer to the fact that

the defendant has not testified.

You are further instructed as a part of the law in this case that the indictment against the

defendant is not evidence in the case, and that the true and sole use of the indictment is to

charge the offense, and to inform the defendant of the offense alleged against him. The reading

of the indictment to the jury in the statement of the case of the state against the defendant

cannot be considered as a fact or circumstance against the defendant in your deliberations.

       In deliberating on the cause you are not to refer to or discuss any matter or issue not in

evidence before you; and in determining the guilt or innocence of the defendant, you shall not




                                                                                                     180
                                      DC              BK14139 PG356




 discuss or consider the punishment, if any, which may be assessed against the defendant in the

 event he is found guilty beyond a reasonable doubt.

          You are charged that it is only from the witness stand that the jury is permitted to receive

 evidence regarding the case, or any witness therein, and no juror is permitted to communicate

to any other juror anything he may have heard regarding the case or any witness therein, from

any source other than the witness stand.

          You are instructed that your verdict must be unanimous and it must reflect the individual

verdict of each individual juror, and not a mere acquiescence in the conclusion of the other

JUrors.

          You are the exclusive judges of the facts proved, of the credibility of the witnesses and of

the weight to be given to the testimony, but you are bound to receive the law from the Court,

which is herein given you, and be governed thereby. A juror may believe any, all, none or part of

any evidence given by any witness.

   You are instructed that upon your request to the bailiff you shall be furnished any exhibits

admitted as evidence in the case.

          After the reading of this charge, you shall not be permitted to separate from each other

nor shall you talk to anyone not of your jury. After argument of counsel, you will retire and

select one of your members as your foreperson. It is his or her duty to preside at your

de1iberations and to vote with you in arriving at a unanimous verdict. After you have arrived at

your verdict, you may use the forms attached hereto by having your foreperson sign his or her




                                                                                                         181
                                   DC             BK14139 PG357




                                    Dl DC 12 900059



THE STATE OF TEXAS                           )(             IN THE 331 st DISTRICT

vs.                                          )(             COURT OF

HOWARD THOMAS DOUGLAS                        )(             TRAVIS COUNTY, TEXAS



                                 VERDICT OF THE JURY


             We, the jury, find the defendant, HOWARD THOMAS DOUGLAS, guilty of the

      offense of Securing Execution of a Document by Deception as alleged in the indictment.




                                                    Printed name




                                                                                               182
                             DC           BK14139 PG358




                               DlDC 12 900059

THE STATE OF TEXAS                   )(            IN THE 33lst DISTRICT

vs.                                  )(            COURT OF

HOWARD THOMAS DOUGLAS                )(            TRAVIS COUNTY, TEXAS




                            VERDICT OF THE JURY


We, the jury, find the defendant, HOWARD THOMAS DOUGLAS, not guilty.



                                            -----
                                            FOREPERSON OF THE JURY


                                            Printed name




                                                                           18.3
St<mdards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section     Page 1 of 38




    Home> Publications> Criminal Justice Section Archive




    Criminal Justice Section Standards



    Standards on Prosecutorial Investigations (Talbie of
    Contents)
    P rosecutoria!Investigations is the subject of a new set of ABA
    Criminal Justice Standards approved by the ABA House of
    Delegates in February 2008. To go directly to individual "black
    letter" standards, click on the applicable link in the Table of
    Contents, below. Commentary to these Standards is currently
    being developed and once it is approved by the Standards
    Committee will accompany these "black letter" Standards in a
    published volume.

                          TAIBLE OF CONTENTS

    PREAMIBLE

    PART 1: GENERAl STANDARDS

    STANDARD 1.1 The Function of These Standards

    STANDARD 1.2 General Principles

    STANDARD 1.3 Working With Police and Other Law Enforcement
    Agents

    STANDARD 1.4 Victims, Potential Witnesses, and Targets During
    the Investigative Process

    STANDARD 1.5 Contacts with the Public During the Investigative
    Process



    PART 2: Standards for Specific Investigative Functions of
    the Prosecutor

    STANDARD 2.1 The Decision to Initiate or to Continue an
    Investigation

    STANDARD 2.2 Selecting Investigative Techniques

    STANDARD 2.3 Use of Undercover Law Enforcement Agents and
    Undercover Operations

    STANDARD 2.4 Use of Confidential Informants

                                                                          APPENDIX 3

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Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section       Page 2 of 38


     STANDARD 2.5 Cooperation Agreements and Cooperating
     Individuals and Organizational Witnesses

     STANDARD 2.6 The Decision to Arrest During a Continuing Criminal
     Investigation

     STANDARD 2. 7 Use of Subpoenas

     STANDARD 2.8 Search Warrants

     STANDARD 2.9 Use of the Investigative Powers of the Grand Jury

     STANDARD 2.10 Technologically-Assisted Physical Surveillance

     STANDARD 2.11 Consensual Interception, Transmission and
     Recording of Communications

     STANDARD 2.12 Non-Consensual Electronic Surveillance

     STANDARD 2.13 Conducting Parallel Civil and Criminal
     Investigations

     STANDARD 2.14 Terminating the Investigation, Retention of
     Evidence and Post- Investigation Analysis

     STANDARD 2.15 Guidance and Training for Line Prosecutors

     STANDARD 2.16 Special Prosecutors, Independent Counsel and
     Special Prosecution Units

     STANDARD 2.17 Use of Information, Money, or Resources Provided
     by Non- Governmental Sources

     STANDARD 2.18 Use of Sensitive, Classified or Other Information
    Implicating Investigative Privileges

     PART 3: PROSECUTOR'S ROlE IN RESOlVING
    INVESTIGATION PROBlEMS

    STANDARD 3.1 Prosecutor's Role in Addressing Suspected Law
    Enforcement Misconduct

    STANDARD 3.2 Prosecutor's Role in Addressing Suspected Judicial
    Misconduct

    STANDARD 3.3 Prosecutor's Role in Addressing Suspected
    Misconduct by Defense Counsel

    STANDARD 3.4 Prosecutor's Role in Addressing Suspected
    Misconduct by Witnesses, Informants or Jurors

    STANDARD 3.5 Illegally Obtained Evidence

    STANDARD 3.6Responding to Political Pressure and Consideration
    of the Impact of Criminal Investigations on the Political Process

    STANDARD 3. 7 Review and Oversight of Criminal Investigations by
    Government Agencies and Officials

    Starndards om Prosecutoriai Irnvestigatiorns (Text)
           ABA Standards for Criminal Justice: Prosecutorial
                                 Investigations
                        Approved February 2008




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Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section      Page 3 of 38



                                  Preamble
    A prosecutor's investigative role, responsibilities and potential
    liability are different from the prosecutor's role and responsibilities
    as a courtroom advocate. These Standards are intended as a guide
    to conduct for a prosecutor actively engaged in a criminal
    investigation or performing a legally mandated investigative
    responsibility, e.g., serving as legal advisor to an investigative
    grand jury or as an applicant for a warrant to intercept
    communications. These Standards are intended to supplement the
    Prosecution Function Standards, not to supplant them. These
    Standards may not be applicable to a prosecutor serving in a minor
    supporting role to an investigation undertaken and directed by law
    enforcement agents.


                                   PART 1:
                           GENERAl STANDARDS



    STANDARD 1.1 THE FUNCTION OF THESE STANDARDS



        (a) These Standards address the investigative stage of the
    criminal justice process. They address the charge or post-charge
    stages of the criminal justice process only when those stages
    overlap with the investigative stage.

        (b) Standards are not intended to serve as the basis for the
    imposition of professional discipline, nor to create substantive or
    procedural rights for accused or convicted persons. These
    Standards do not modify a prosecutor's ethical obligations under
    applicable rule of professional conduct. These Standards are not
    intended to create a standard of care for civil liability, nor to serve
    as a predicate for a motion to suppress evidence or dismiss a
    charge.

        (c) The use of the term "prosecutor" in these Standards
    applies to any prosecutor or other attorney, regardless of agency
    or title, who serves as an attorney in a governmental criminal
    investigation.



    STANDARD 1.2 GENERAl PRINCIPlES



        (a) An individual prosecutor is not an independent agent but is
    a member of an independent institution the primary duty of which
    is to seek justice.

        (b) The prosecutor's client is the public, not particular
    government agencies or victims.




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Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section         Page 4 of 38


         (c) The purposes of a criminal investigation are to:

         (i) develop sufficient factual information to enable the
    prosecutor to make a fair and objective determination of whether
    and what charges should be brought and to guard against
    prosecution of the innocent, and

         (ii) develop legally admissible evidence sufficient to obtain
    and sustain a conviction of those who are guilty and warrant
    prosecution.

        (d) The prosecutor should:

         (i) ensure that criminal investigations are not based upon
    premature beliefs or conclusions as to guilt or innocence but are
    guided by the facts;

          (ii) ensure that criminal investigations are not based upon
    partisan or other improper political or personal considerations and
    do not invidiously discriminate against, nor wrongly favor, persons
    on the basis of race, ethnicity, religion, gender, sexual orientation,
    political beliefs, age, or social or economic status;

          (iii) consider whether an investigation would be in the public
    interest and what the potential impacts of a criminal investigation
    might be on subjects, targets and witnesses; and

          (iv) seek in most circumstances to maintain the secrecy and
    confidentiality of criminal investigations.

       (e) Generally, the prosecutor engaged in an investigation
    should not be the sole decision-maker regarding the decision to
    prosecute matters arising out of that investigation.

        (f) The prosecutor should be aware of and comply with the
    ethical rules and other legal standards applicable to the
    prosecutor's conduct during an investigation.

        (g) The prosecutor should cooperate with other governmental
    authorities regarding matters that are of legitimate concern to such
    authorities when doing so is permitted by law and would not
    compromise an investigation or other criminal justice goals.

        (h) The prosecutor's office should provide organizational
    structure to guide its members' investigative work.




    STANDARD 1.3 WORKING WITH POliCE AND OTHER lAW
    ENFORCEMENT AGENTS



        (a) The prosecutor should respect the investigative role of
    police and other law enforcement agents by:

         (i) working cooperatively with them to develop investigative
    policies; and




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Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section      Page 5 of 38


         (ii) providing independent legal advice regarding their
    investigative decisions.

       (b) The prosecutor should take steps to promote compliance by
    law enforcement agents with relevant legal rules.

       (c) The prosecutor should be aware of the experience, skills
    and professional abilities of police and other law enforcement
    agents assigned to an investigation.

        (d) The prosecutor's office should assist in providing training to
    police and other law enforcement agents concerning potential legal
    issues and best practices in criminal investigations.

        (e) Before and throughout the course of complex or non-routine
    investigations, the prosecutor should work with the police and
    other participating agencies and experts to develop an
    investigative plan that analyzes:

         (i) the investigative predicate or information concerning the
    matter that is then known;

         (ii) the goals of the investigation;

         (iii) the potential investigative techniques and the advantages
    of each, singularly and in combination, in producing relevant
    information and admissible evidence; and

         (iv) the legal issues likely to arise during the investigation.

        (f) The prosecutor should promote timely communications with
    police and other law enforcement agents about material
    developments in the investigation.

        (g) The prosecutor should not seek to circumvent ethical rules
    by instructing or recommending that others use means that the
    prosecutor is ethically prohibited from using. The prosecutor may
    provide legal advice to law enforcement agents regarding the use
    of investigative techniques that law enforcement agents are
    authorized to use.



    STANIDAIRD 1.4 VICTIMS, POTENTIAl WITNESSES, AND
    TARGETS IDUIRING THE INVESTIGATIVE PROCESS

        (a) Throughout the course of the investigation as new
    information emerges, the prosecutor should reevaluate:

         (i) judgments or beliefs as to the culpability or status of
    persons or entities identified as "witnesses," "victims," "subjects"
    and "targets," and recognize that the status of such persons or
    entities may change; and

         (ii) the veracity of witnesses and confidential informants and
    assess the accuracy and completeness of the information that each
    provides.

        (b) Upon request and if known, the prosecutor should inform a
    person or the person's counsel, whether the person is considered




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Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section         Page 6 of 38


     to be a target, subject, witness or victim, including whether their
     status has changed, unless doing so would compromise a
     continuing investigation.

        (c) The prosecutor should know the law of the jurisdiction
     regarding the rights of victims and witnesses and should respect
     those rights.

         (d) Absent a law or court order to the contrary, the prosecutor
     should not imply or state that it is unlawful for potential witnesses
     to disclose information related to or discovered during an
     investigation. The prosecutor may ask potential witnesses not to
     disclose information, and in doing so, the prosecutor may explain
     to them the adverse consequences that might result from
     disclosure (such as compromising the investigation or endangering
     others). The prosecutor also may alert an individual who has
     entered into a cooperation agreement that certain disclosures
     might result in violation of the agreement.

         (e) The prosecutor should not imply the existence of legal
     authority to interview an individual or compel the attendance of a
     witness if the prosecutor does not have such authority.

       (f) The prosecutor should comply with applicable rules and case
    law that may restrict communications with persons represented by
    counsel.

        (g) The prosecutor should not take into consideration any of
    the following factors in making a determination of whether an
    organization has been cooperative in the context of a government
    investigation unless the specified conduct of the organization would
    constitute a violation of law or court order:

         (i) that the organization has provided, or agreed to provide
    counsel to, or advanced, reimbursed or indemnified the legal fees
    and expenses of, an employee;

        (ii) that the organization entered into or continues to operate
    under a joint defense or information sharing and common interest
    agreement with regard to the investigation;

         (iii) that the organization shared its records or other historical
    information relating to the matter under investigation with an
    employee; or

        (iv) that the organization did not sanction or discharge an
    employee who invoked his or her Fifth Amendment privilege
    against self-incrimination in response to government questioning of
    the employee.

        (h) The prosecutor should not interfere with, threaten, or seek
    to punish persons or entities seeking counsel in connection with an
    investigation, nor should the prosecutor interfere with, threaten or
    seek to punish those who provide such counsel unless by doing so
    such conduct would constitute a violation of law or court order. A
    good faith basis for raising a conflict of interest, or for investigating




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Standards on Prosecuiorial Investigations (Table of Contents) I Criminal Justice Section      Page 7 of 38


    possible criminal conduct by the defense attorney, is not
    "interference" within the meaning of this Standard.



    STANDARD 1.5 CONTACTS WITH THE PUBliC DURING THE
    INVESTIGATIVE PROCESS

        (a) The prosecutor should neither confirm nor deny the
    existence of an investigation, or reveal the status of the
    investigation, nor release information concerning the investigation,
    with the following exceptions:

         (i) releasing information reasonably necessary to obtain public
    assistance in solving a crime, apprehending a suspect, or calming
    public fears;

         (ii) responding to a widely disseminated public call for an
    investigation by stating that the prosecutor will investigate, or
    decline to investigate the matter;

         (iii) responding to a law enforcement or regulatory matter of
    significant public safety concern, by stating that the prosecutor will
    begin an investigation or begin a special initiative to address the
    issue, or by releasing information reasonably necessary to protect
    public safety, subject to restrictions in the law of the jurisdiction;

         (iv) announcing future investigative plans in order to deter
    criminal activity;

         (v) stating in an already publicized matter and where justice
    so requires, that the prosecutor will not initiate, will not continue,
    or has concluded an investigation of a person, entity, or matter
    and, if applicable, has informed the subject or potential subject of
    the decision not to file charges;

         (vi) responding to widely disseminated false statements that
    the prosecutor is, or is not, investigating a person, entity, or
    matter;

        (vii) stating whether and when, if court rules so permit, an
    event open to the public is scheduled to occur;

        (viii) offering limited comment when public attention is
    generated by an event in the investigation (e.g., arrests, the
    execution of search warrants, the filing of charges, or convictions),
    subject to governing legal standards and court rules; and

         (ix) making reasonable and fair responses to comments of
    defense counsel or others.

       (b) Except as a proper part of a court proceeding and in
    accordance with applicable rules, the prosecutor should not publicly
    make the following types of statements or publicly disclose the
    following information about an investigation:

         (i) statements of belief about the guilt or innocence, character
    or reputation of subjects or targets of the investigation;




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Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section         Page 8 of 38


         (ii) statements that have a substantial likelihood of materially
    prejudicing a jury or jury panel;

         (iii) information about the character or reputation of a person
    or entity under investigation, a prospective witness, or victim;

          (iv) admissions, confessions, or the contents of a statement or
    alibi attributable to a person or entity under investigation;

        (v) the performance or results of tests or the refusal or
    agreement of a suspect to take a test;

         (vi) statements concerning the credibility or anticipated
    testimony of prospective witnesses; and
         (vii) the possibility or likelihood of a plea of guilty or other
    disposition.

       (c) The prosecutor should endeavor to dissuade police and
    other law enforcement agents and law enforcement personnel from
    making public information that the prosecutor would be prohibited
    from making public, or that may have an adverse impact on the
    investigation or any potential prosecution.




                                     PAIRT 2:
       STANDARDS FOR SPECIFIC INVESTIGATIVE FUNCTIONS
                     OF n11E PROSECUTOR


    STANDARD 2.1 THE DECISION TO INITIATE OIR TO
    CONTINUE AN INVESTIGATION
        (a) The prosecutor should have wide discretion to select
    matters for investigation. Thus, unless required by statute or
    policy:

         (i) the prosecutor should have no absolute duty to investigate
    any particular matter; and

          (ii) a particularized suspicion or predicate is not required prior
    to initiating a criminal investigation.

        (b) In deciding whether an investigation would be in the public
    interest, the prosecutor should consider, but not necessarily be
    dissuaded by, the following:

         (i) a lack of police interest;

         (ii) a lack of public or political support;

         (iii) a lack of identifiable victims;

         (iv) fear or reluctance by potential or actual witnesses; or

         (v) unusually complex factual or legal issues.

        (c) When deciding whether to initiate or continue an
    investigation, the prosecutor should consider:



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        (i) whether there is evidence of the existence of criminal
    conduct;
         (ii) the nature and seriousness of the problem or alleged
    offense, including the risk or degree of harm from ongoing criminal
    conduct;
         (iii) a history of prior violations of the same or similar laws
    and whether those violations have previously been addressed
    through law enforcement or other means;

        (iv) the motive, interest, bias or other improper factors that
    may influence those seeking to initiate or cause the initiation of a
    criminal investigation;

         (v) the need for, and expected impact of, criminal
    enforcement to:

           (A) punish blameworthy behavior;

           (B) provide specific andor general deterrence;

           (C) provide protection to the community;

           (D) reinforce norms embodied in the criminal law;

           (E) prevent unauthorized private action to enforce the law;

           (F) preserve the credibility of the criminal justice system;
    and
           (G) other legitimate public interests.

         (vi) whether the costs and benefits of the investigation and of
    particular investigative tools and techniques are justified in
    consideration of, among other things, the nature of the criminal
    activity as well as the impact of conducting the investigation on
    other enforcement priorities and resources

         (vii) the collateral effects of the investigation on witnesses,
    subjects, targets and non-culpable third parties, including financial
    damage and harm to reputation

          (viii) the probability of obtaining sufficient evidence for a
    successful prosecution of the matter in question, including, if there
    is a trial, the probability of obtaining a conviction and having the
    conviction upheld upon appellate review; and

          (ix) whether society's interest in the matter might be better or
    equally vindicated by available civil, regulatory, administrative, or
    private remedies.

       (d) When deciding whether to initiate or continue an
    investigation, the prosecutor should not be influenced by:

         (i) partisan or other improper political or personal
    considerations, or by the race, ethnicity, religion, gender, sexual
    orientation, political beliefs or affiliations, age, or social or
    economic status of the potential subject or victim, unless they are
    elements of the crime or are relevant to the motive of the
    perpetrator; or



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         (ii) hostility or personal animus towards a potential subject, or
    any other improper motive of the prosecutor.

       (e) The prosecutor's office should have an internal procedure to
    document the reason(s) for declining to pursue prosecution
    following a criminal investigation.



    STANDARD 2.2 SELECTING INVESTIGATIVE TECHNIQUES
        (a) The prosecutor should be familiar with routine investigative
    techniques and the best practices to be employed in using them.

        (b) The prosecutor should consider the use of costlier, riskier,
    or more intrusive means of investigation only if routine
    investigative techniques would be inappropriate, ineffective, or
    dangerous, or if their use would impair the ability to take other
    desirable investigative steps. If non-routine techniques are used,
    the prosecutor should regularly reevaluate the need for them and
    whether the use of routine investigative techniques will suffice.

        (c) The prosecutor should consider, in consultation with police
    and other law enforcement agents involved in the investigation,
    the following factors:

         (i) the likely effectiveness of a particular technique;

         (ii) whether the investigative means and resources to be
    utilized are appropriate to the seriousness of the offense;

         (iii) the risk of physical danger to law enforcement officers
    and others;

         (iv) the costs involved with various investigative techniques
    and the impact such costs may have on other efforts within the
    prosecutor's office;

         (v) the possibility of lost opportunity if an investigative
    technique is detected and reveals the investigation;

         (vi) means of avoiding unnecessary intrusions or invasions
    into personal privacy;

         (vii) the potential entrapment of otherwise innocent persons;

         (viii) the risk of property damage, financial loss to persons or
    businesses, damage to reputation or other harm to persons;

       (ix) interference with privileged or confidential
    communication;

         (x) interference with or intrusion upon constitutionally
    protected rights; and

         (xi) the risk of civil liability or other loss to the government.

        (d) The prosecutor should consider the views of experienced
    police and other law enforcement agents about safety and
    technical and strategic considerations in the use of investigative
    techniques.




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          (e) The prosecutor may consider that the use of certain
    investigative techniques could cause the subject of the
    investigation to retain legal counsel and thereby limit the use of
    some otherwise permissible investigative techniques.

          (f) The prosecutor should avoid being the sole interviewer of a
    witness, being alone with a witness, or otherwise becoming an
    essential witness to any aspect of the investigation.

          (g) While the prosecutor may, and sometimes should, seek
    changes in law and policy, the prosecutor should abide by existing
    legal restraints, even if the prosecutor believes that they
    unjustifiably inhibit the effective investigation of criminal conduct.

    STANDARD 2.3 USE Of UNDERCOVER LAW ENFORCEMENT
    AGENTS AND UNDERCOVER OPERATIONS

          (a) For the purpose of these Standards, an "undercover law
    enforcement agent" is an employee of a government agency
    working under the direction and control of a government agency in
    a criminal investigation, whose true identity as a law enforcement
    agent involved in the investigation is concealed from third parties.

       (b) For the purpose of these Standards, an "undercover
    operation" means an investigation in which undercover law
    enforcement agents or other persons working with law
    enforcement conceal their purpose of detecting crime or obtaining
    evidence to prosecute those engaged in illegal activities.

          (c) In deciding whether to use or to advise the use of
    undercover law enforcement agents or undercover operations, the
    prosecutor should consider potential benefits, including:

           (i) the character and quality of evidence likely to be obtained;
    and

           (ii) the ability to prevent or solve crimes where obtaining
    reliable and admissible evidence to do so would otherwise be
    difficult or impossible to obtain.

          (d) In deciding whether to use or to advise the use of
    undercover law enforcement agents or undercover operations, the
    prosecutor should consider potential risks, including:

           (i) physical injury to law enforcement agents and others;

           (ii) lost opportunity if the operation is revealed;

           (iii) unnecessary intrusions or invasions into personal privacy;

           (iv) entrapment of otherwise innocent persons;

           (v) property damage, financial loss to persons or businesses,
    damage to reputation or other harm to persons;

           (vi) interference with privileged or confidential
    communications;

           (vii) interference with or intrusion upon constitutionally
    protected rights;




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         (viii) civil liability or other adverse impact on the government;

         (ix) personal liability of the law enforcement agents;

         (x) involvement in illegal conduct by undercover law
    enforcement agents or government participation in activity that
    would be considered unsuitable and highly offensive to public
    values and that may adversely impact a jury's view of a case; and

         (xi) the possibility that the undercover operation will
    unintentionally cause an increase in criminal activity.

        (e) The prosecutor advising an undercover investigation should:

         (i) consult with appropriate police or law enforcement agents
    on a regular basis about the continued propriety of the operation
    and the legal sufficiency and quality of the evidence that is being
    produced by the operation;

           (ii) seek periodic internal review of the investigation to
    determine whether the operation's benefits continue to outweigh
    its risks and costs, including the extent to which:

          (A) the goals of the investigation have been accomplished;

          (B) there is potential for the acquisition of additional useful
    and non- duplicative information;

        (iii) the investigation can continue without exposing the
    undercover operation; and

         (iv) continuation of the investigation may cause financial or
    other injury to innocent parties.

        (f) The prosecutor should seek to avoid or minimize the risks
    involved in the active participation of undercover police or law
    enforcement agents in illegal activity, and provide such agents
    guidance about authorized participation in otherwise criminal
    conduct.

        (g) Records of funds expended and generated by undercover
    activity should be retained and accounted for in a manner that
    facilitates a comprehensive and accurate audit.



    STANDARD 2.4 USE OF CONFIDENTIAL INFORMANTS

       (a) As used in these Standards, a "confidential informant" is a
    person who supplies information to police or law enforcement
    agents pursuant to an agreement that the police or investigative
    agency will seek not to disclose the person's identity. The identity
    of a confidential informant may also be unknown to the prosecutor.
    A confidential informant may in some instances become a
    cooperator, and in such circumstances reference should be made
    to Standard 2.5.

        (b) The prosecutor should consider possible benefits from the
    use of a confidential informant, including whether the confidential
    informant might enable the government to obtain:




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          (i) first-hand, eyewitness accounts of criminal activity;

           (ii) critical background information about the criminal activity
     or criminal organization under investigation;

          (iii) information necessary to provide a basis for additional
     investigative techniques or court-ordered means of investigation
     such as a search warrant; and

          (iv) identification of witnesses or leads to witnesses who can
     provide direction to further the investigation or valuable testimony
     to a grand jury or at trial.

         (c) The prosecutor should consider possible risks from the use
     of a confidential informant. These include risks that the confidential
     informant will:

          (i) be untruthful, or provide misleading or incomplete
     information;

          (ii) compromise the criminal investigation by revealing
     information to others, including the subjects or targets of the
     investigation;

          (iii) engage in behavior constituting entrapment;

          (iv) commit or continue to commit crimes;

         (v) be subject, or subject others, to serious risk of physical
     harm as a result of cooperating with law enforcement; and

          (vi) interfere with privileged or confidential relationships or
     communications or violate the rights of the investigation's subject.

         (d) The prosecutor should avoid being alone with a confidential
     informant, even for a brief period of time.

       (e) Before deciding to rely upon the information provided by a
    confidential informant for significant investigative steps, the
    prosecutor should review the following with the police or law
    enforcement agents:

          (i) the ability of the confidential informant to provide or obtain
     information relevant to the criminal investigation;

         (ii) means of corroborating information received from the
    confidential informant;

          (iii) the possible motives or biases of the confidential
    informant, including the motive to gain a competitive advantage
    over others in either criminal or legitimate enterprises;

         (iv) the nature of any and all promises made to the
    prospective confidential informant by other prosecutors, police or
    law enforcement agents, including promises related to the
    treatment of associates or relatives of the confidential informant;

         (v) the prior history of the confidential informant , including
    prior criminal activity and other information, including the
    informant's true identity if necessary for the prosecutor's review;




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         (vi) whether the prospective confidential informant is
    represented by an attorney or is party to a joint defense
    agreement with other targets of the investigation and, if so, how
    best to address potential legal or ethical issues related to the
    representation or agreement;

           (vii) if reasonably available, the experience other prosecutors
    and law enforcement agents have had with the confidential
    informant;

           (viii) whether the proposed compensation or benefits to be
    received by the confidential informant are reasonable under the
    circumstances;

           (ix) the risk that the prospective confidential informant may
    be an agent of the subjects of the investigation or of other criminal
    groups and individuals, or may reveal investigative information to
    them; and
           (x) the risk that the prospective confidential informant will
    engage in criminal activity not authorized by the prosecutor, and
    the seriousness of that unauthorized criminal activity.

          (f) The prosecutor's office should work with police and law
    enforcement agents to develop best practices and policies for the
    use of confidential informants that include:

           (i) a rule that investigative information obtained from other
    sources should not be provided to the confidential informant unless
    doing so would materially advance the investigation;

           (ii) prohibitions on making promises of compensation or other
    benefits that would shock the conscience of a moral society or
    would risk compromising the credibility of the informant in any
    proceeding in which the informant's testimony may be important;

           (iii) prohibitions on making promises that the police or law
    enforcement agents are unlikely to be able to keep;

           (iv) routine instructions to confidential informants to refrain
    from criminal conduct other than as directed by law enforcement;
    and

           (v) the routine use of standard form agreements when such
    agreements are entered into by law enforcement officers without
    the involvement of the prosecutor.



    STANDARD 2.5 COOIPIERATION AGRIEIEMIENTS AND
    COOIPIERATING INDIVIDUALS AND ORGANIZATIONAL
    WITNIESSIES

          (a) As used in these Standards, "cooperation agreements" are
    agreements between the prosecutor and otherwise culpable
    individuals or entities ("cooperators") who provide the government
    with assistance useful to an investigation in exchange for benefits.




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    A cooperator may have been a confidential informant earlier in the
    investigation.

       (b) The prosecutor should ordinarily seek to have the
    cooperator plead guilty to an appropriate criminal charge rather
    than provide the cooperator immunity for culpable conduct.

       (c) In deciding whether to offer a cooperator significant
    benefits, including a limit on criminal liability, immunity, or a
    recommendation for reduction of sentence, the prosecutor should
    consider whether:

         (i) the cooperator is able and willing to provide valuable
    assistance to the investigation;

           (ii) the cooperator will maintain the confidentiality or secrecy
    of the investigation;
           (iii) the cooperator has biases or personal motives that might
    result in false, incomplete, or misleading information;

         (iv) leniency or immunity for the criminal activity of the
    cooperator is warranted by the goals of the investigation and the
    public interest, including appropriate consideration for victim(s)
    interests;
         (v) providing leniency, immunity or other benefits would be
    seen as offensive by the public or cause a reasonable juror to
    doubt the veracity of the cooperator's testimony;

         (vi) information that has been provided (such as through an
    attorney proffer or by a debriefing of the cooperator) has been
    corroborated or can otherwise shown to be accurate;

          (vii) the culpability of other participants in the criminal activity
    relative to the cooperator's culpability has been determined as
    accurately as possible;

         (viii) there is a likelihood that the cooperator will provide
    useful information only if given leniency or immunity;

           (ix) the case could be successfully prosecuted without the
    cooperator's assistance; and

         (x) the cooperator could be successfully prosecuted without
    the admissions of the cooperator made pursuant to the agreement.

          (d) The cooperation agreement should not:

        (i) promise to forego prosecution for future criminal activity,
    except where such activity is necessary as part of an officially
    supervised investigative and enforcement program; or

           (ii) adversely affect third parties' legal rights.

          (e) The prosecutor should:

           (i) be aware that anything said to the cooperator might be
    repeated to the cooperator's criminal associates or in open court;
    and




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          (ii) be aware of the disclosure requirements under relevant
     law if a cooperator ultimately testifies at trial, including disclosure
     of any and all agreements and promises made to the cooperator
     and evidence which could impact the cooperator's credibility,
     including the complete criminal history of the cooperator. The
     prosecutor should take steps to assure the preservation of such
     evidence.

         (f) The prosecutor should recognize and respect the role of the
     cooperator's attorney in the decision to cooperate and in the
     disposition of significant legal rights.

         (g) Ordinarily, a prosecutor who offers leniency in exchange for
     cooperation should not withdraw or threaten to withdraw the offer
     because of the potential cooperator's request to consult with
     counsel prior to deciding whether to accept it. However, if the time
     required for the potential cooperator to consult with counsel would
     render the agreement ineffective, the prosecutor may withdraw or
     threaten to withdraw the offer before there is opportunity for such
     consultation. In that event, the prosecutor may condition
     cooperation on an immediate and uncounseled decision to proceed.

         (h) The prosecutor should reduce a cooperation agreement to
     writing as soon as practicable. An agreement should only cover
     those crimes known to the government at the time it is made, and
     should specify:

            (i) the specific details of all benefits and obligations agreed
     upon;
            (ii) the specific activities to be performed by the cooperator;

          (iii) the requirement that the cooperator be truthful in dealing
     with the government and in all legal proceedings;

          (iv) the prohibition against the cooperator's engaging in any
     criminal conduct other than as directed by law enforcement;

            (v) the extent of the disposition of the potential criminal and
     civil claims against the cooperator;

            (vi) a complete list of any other promises, financial benefits or
     understandings;

         (vii) the limitations of the agreement with respect to the
     terms it contains and to the identified jurisdiction or jurisdictions;
     and

         (viii) the remedy in the event the cooperator breaches the
     agreement.

           (i) The prosecutor should avoid being alone with a cooperator
     even for a brief period of time.

        (j) The prosecutor should guard against the cooperator
     obtaining information from others that invades the attorney-client
     or work product privileges or violates the Sixth Amendment right
     to counsel.




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        (k) Prior to relying on the cooperator's information in
     undertaking an investigative step that could cause adverse
     consequences to the investigation or to a third party, the
     prosecutor should be satisfied as to the truthfulness of the
     cooperator.

        (I) If an investigative step involves an application to a court or
     other official body, the prosecutor should make appropriate and
     required disclosures about the cooperator to the court or other
     body.

        (m) If the prosecutor suspects that the cooperator is not being
    truthful, the prosecutor should take reasonable steps to address
    such concerns and seek further corroboration of the cooperator's
     information.

        (n) If the prosecutor determines that a cooperator has
    knowingly provided false information or otherwise breached the
    cooperation agreement, the prosecutor should:

          (i) seek guidance from a supervisor;

          (ii) undertake or request the initiation of an investigation into
    the circumstances;

          (iii) consider the possible prosecution of the cooperator, and;

          (iv) carefully reevaluate the investigation.



    STANDARD 2..6 TIHE DECISION TO ARREST Dll...llRING A
    CONTINII.JliNG CRIMINAl INVESTIGATION

        (a) In making a tactical decision whether, when or where to
    arrest a subject during a continuing investigation, the prosecutor
    should consider the potential benefits of the arrest, including:

          (i) protecting the public from a person known to present an
    imminent danger;

          (ii) reducing the likelihood of flight;

          (iii) preventing the destruction of evidence and providing an
    opportunity to obtain evidence of a crime pursuant to a search
    incident to arrest;

          (iv) stopping or deterring the harassment or coercion of
    witnesses or other acts of obstruction of justice;

         (v) creating an opportunity to ask questions about an
    unrelated crime;

         (vi) encouraging other culpable individuals or witnesses to
    surrender to law enforcement and to cooperate with the
    investigation;

         (vii) inducing relevant conversation or other communication
    likely to be intercepted by law enforcement; and




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         (viii) protecting the existence of an undercover agent or
    confidential informant, a cooperator or an undercover operation.

       (b) In deciding whether, when or where to arrest a subject
    during a continuing investigation, the prosecutor should consider
    the potential risks of the arrest, including:
         (i) limiting the continued conduct of a criminal investigation
    by alerting others involved in continuing criminal activity;

         (ii) restricting the use of some investigative techniques;

         (iii) triggering speedy charge and speedy trial rules;

         (iv) triggering disclosure obligations that have been subject to
    delayed notice;

        (v) appearing to be illegitimate or pre-textual and thus
    adversely affecting community support for police and prosecution
    efforts; and
         (vi) causing significant shame, embarrassment or prejudice to
    the arrestee or innocent third parties and unintended and unfair
    financial impacts.
        (c) The prosecutor should be aware that Sixth Amendment
    right to counsel issues raised by the filing of criminal charges may
    limit the availability of some investigative options, including:

         (i) use of the grand jury as an investigative technique;

         (ii) soliciting incriminating information from a charged
    individual; and

         (iii) contacts with the individuals or entities who have been
    charged.



    STANIDAIRD 2..7 USE OF SUBPOENAS

        (a) As used in these Standards, a "subpoena," however named
    or designated, is a written command for a person or entity to
    provide physical evidence, testimony or documents. A subpoena
    may be issued by a prosecutor, a court, a grand jury or a law
    enforcement agency, as provided by the law of the jurisdiction.

       (b) In deciding whether to use a subpoena, the prosecutor
    should consider potential benefits including:

         (i) the conservation of law enforcement resources by requiring
    others to search for and provide factual information and physical
    evidence needed for an investigation;

        (ii) the imposition of an obligation on the subject of the
    subpoena to provide factual information or physical evidence;

          (iii) the fact that no predicate or less of a showing is required
    to issue a subpoena, as compared to a search warrant;

         (iv) the ability to delay or prevent a third party from
    voluntarily or compulsorily disclosing information about the




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       subpoena (including the disclosure of either the fact of the
       subpoena itself or of any information provided in response) as a
       means to preserve the secrecy of the investigation if authorized by
       law; and

            (v) voluntary disclosures or cooperation by witnesses and
       subjects prompted by receipt of the subpoena.

         (c) In deciding whether to use a subpoena, the prosecutor
      should consider the following potential risks and ways to mitigate
      them:

            (i) that evidence will be destroyed or altered in between
       receipt and production;

            (ii) that information responsive to the subpoena will be
       improperly withheld or that the request will be interpreted
       narrowly; and

           (iii) that knowledge of the subpoena will cause the subjects of
      the investigation to disguise criminal activity, or take actions to
      impede or obstruct the investigation.

           (d) The prosecutor using a subpoena should:

           (i) seek to limit the scope of the subpoena to the needs of the
      investigation, avoid overbroad requests, and avoid seeking the
      production of attorney-client privileged material; and

            (ii) provide reasonable accommodations based on factors such
      as the size or nature of the request, the impact of the request on
      legitimate business operations, or the time reasonably needed to
      perform a review for privileged or other legally protected fact
      information, unless doing so would be outweighed by the
      government's interest in avoiding delay.

         (e) The prosecutor should ensure that materials received
      pursuant to a subpoena are properly stored, logged or indexed,
      and are readily retrievable.

          (f) The prosecutor should accept copies of documents subject
      to a subpoena unless there is a specific need for original
      documents that outweighs the producing party's need and right to
      retain its original materials.

          (g) The prosecutor should provide copies, or if necessary,
      reasonable access to copies or original documents to the person or
      entity who has produced the copies or originals.

          (h) The prosecutor should seek to minimize the cost and
      dislocation suffered by a person or entity to whom a subpoena is
      issued and, where applicable, should inform the person or entity of
      any right to compensation allowed by law.

         (i) The prosecutor should arrange for the return of subpoenaed
      documents and materials when the purpose for which they were
      subpoenaed has ended.




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        (j) The prosecutor involved in an investigation where police or
     law enforcement agents have legal authority to issue written
     requests for various records and data without probable cause or
    judicial oversight, should provide advice as to whether the
    proposed use of such authority is consistent with the limits of the
    applicable law, the Constitution, and the circumstances of the
    investigation.



    STANDARD 2..8 SEARCH WARRANTS

        (a) As used in these Standards a "search warrant" is a written
    command issued by a judge or magistrate that permits law
    enforcement agents to search specified persons or premises and
    seize specified effects and information.

        (b) The prosecutor should consider the following potential
    benefits associated with using a search warrant:

         (i) securing evidence that might otherwise be removed,
    hidden, altered or destroyed;

         (ii) removing contraband from commerce before it is
    transferred or used;

         (iii) seeing and documenting the precise location of the items
    to be seized in their natural or unaltered state or location;

         (iv) obtaining statements by individuals at the scene of the
    search that might further the investigation;

         (v) observing and recording the presence of individuals found
    together at the scene of the search as evidence of their
    coordination; and

         (vi) encouraging other culpable individuals or witnesses to
    come forward and provide information to the investigation.

       (c) The prosecutor should consider the following potential costs
    and risks before applying for a search warrant:

         (i) the extensive utilization of limited government resources
    during the preparation and execution of a search warrant, as
    compared with other means of gathering information, such as a
    subpoena;

         (ii) the intrusive nature of the execution of the warrant and its
    impact on personal privacy or on legitimate business operations;

         (iii) the impact of execution of the warrant on innocent third
    parties who may be on the premises at the time the warrant is
    executed; and

         (iv) the potential danger or harm to third parties.

        (d) When the prosecutor is involved in an investigation, the
    prosecutor should review search warrant applications prior to their
    submission to a judicial officer. In all other cases, the prosecutor
    should encourage police and law enforcement agents to seek




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      prosecutorial review and approval of search warrants prior to their
      submission to a judicial officer.

         (e) In jurisdictions that authorize telephonic warrants, the
      prosecutor should be familiar with the rules governing the use of
      such warrants and should be available to confer with law
      enforcement agents about them.

         (f) In reviewing a search warrant application, the prosecutor
      should:

           (i) seek to assure the affidavit is complete, accurate and
      legally sufficient;

           (ii) seek to determine the veracity of the affiant and the
      accuracy of the information, especially when the application is
      based on information from a confidential informant; and

           (iii) seek to ensure that the affidavit is not misleading and
      does not omit material information which has a significant bearing
      on probable cause.

          (g) The prosecutor involved in the investigation should:

           (i) generally, if time permits, meet in advance with all law
      enforcement and other personnel who will participate in the
      execution of the warrant to explain the scope of the warrant,
      including the area(s) to be searched and the items to be seized;

            (ii) consistent with the goals of the investigation, provide
      legitimate business operations and third parties reasonable access
      to seized records;

           (iii) avoid becoming a necessary percipient witness at the
      scene of the execution of the warrant but be readily available and
      accessible to respond to immediate questions or to assist in the
      preparation of additional warrant applications;

            (iv) seek to ensure that an inventory is filed as required by
      relevant rules; and

           (v) seek to preserve exculpatory evidence obtained during a
      search and consider the impact of such evidence on the criminal
      investigation.

          (h) When searching an attorney's office, or any place where
      attorney-client or other privileged material is likely to be located or
      is discovered, the prosecutor should arrange for evidence to be
      recovered in such manner as to prevent or minimize any
      unauthorized intrusion into confidential relationships or information
      privileged under law.

          (i) The prosecutor should seek to prevent or minimize the
      disclosure of information to the public which a person or entity
      may consider private or proprietary.

         (j) The prosecutor should consider seeking to delay notice
      about the execution of a search warrant if such delay is authorized




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    by law and if prompt disclosure of the execution of the warrant
    could reasonably be expected to result in:

         (i) the endangerment of life or physical safety of an
    individual;

         (ii) the intimidation of potential witnesses;

         (iii) the flight from prosecution by a target of any
    investigation;

         (iv) the destruction of or tampering with evidence in any
    investigation; or

         (v) any other serious jeopardy to an investigation.

       (k) The prosecutor should not notify media representatives of a
    search before it occurs and should advise law enforcement agents
    acting with the prosecutor in the investigation not to do so.

       (I) The prosecutor should consider whether the papers
    supporting the search warrant should be sealed after the warrant is
    executed and should make application to do so only when the
    prosecutor believes that the public's interest in knowing of the
    warrant is outweighed by the need to maintain secrecy of the
    investigation or to prevent unfair publicity to the persons or
    organizations whose premises were searched.



    STANDARD 2.9 USIE OIF THE INVESTIGATIVE POWERS OIF
    THE GRAND JURY

       (a) In deciding whether to use a grand jury, the prosecutor
    should consider the potential benefits of the power of the grand
    jury to compel testimony or elicit other evidence by:

         (i) conferring immunity upon witnesses;

         (ii) obtaining evidence in a confidential forum;

         (iii) obtaining evidence from a witness who elects not to speak
    voluntarily to the police or prosecutor;

         (iv) obtaining documentary or testimonial evidence with the
    added reliability provided by the oath and the secrecy
    requirements of the grand jury;

         (v) obtaining documentary evidence from a third party that
    may be difficult to obtain from a target; and

         (vi) preserving witnesses' accounts in the form of sworn
    testimony where the jurisdiction provides for recording or
    transcription of the proceedings.

       (b) In deciding whether to use a grand jury, the prosecutor
    should consider the potential risks including:

         (i) revealing the existence or direction of an investigation;

         (ii) obtaining evasive or untruthful testimony from witnesses
    who are loyal to targets or fearful of them;




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          (iii) relying on witnesses to obey the commands of subpoenas
     directing them to produce documents or physical evidence;

          (iv) granting immunity to witnesses:

           (A) who are not believed culpable at the time of the grant
     but are later found to be culpable; or

           (B) who are later found to be more culpable than the
     prosecutor believed at the time of the grant;

          (v) exposing grand jury witnesses to reputational, economic
     or physical reprisal; and

          (vi) exposing grand jury witnesses to collateral consequences
     such as lost time from employment or family obligations, financial
     costs of compliance, and potential damage to their reputation from
     association with a criminal investigation.

        (c) In pursuing an investigation through the grand jury, the
     prosecutor should:

          (i) only bring a matter before the grand jury with the primary
     purpose of seeking justice and to be mindful of the ex parte nature
     of proceedings;

         (ii) prepare adequately before conducting grand jury
     examinations;

          (iii) know and follow the laws of the jurisdiction and the rules,
     practices, and policies of the prosecutor's office;

           (iv) pose only legal and proper questions and, if within the
     knowledge of the prosecutor questioning may elicit a privileged or
     self-incriminating response, advise the witness of the existence of
     the applicable privilege; and

          (v) unless prohibited by the law of the jurisdiction, ensure
     that grand jury proceedings are recorded.

        (d) The prosecutor should use grand jury processes fairly and
     should:

         (i) treat grand jurors with courtesy and give them the
     opportunity to have appropriate questions answered; however, the
     prosecutor should not allow questions that:

          (A) elicit facts about the investigation that should not
     become known to the witness; or

            (B) call for privileged, prejudicial, misleading or irrelevant
     evidence;

          (ii) issue a subpoena ad testificandum only if the prosecutor
     intends to bring the witness before the grand jury;

          (iii) refrain from issuing a subpoena that is excessively broad
     or immaterial to the legitimate scope of the grand jury's inquiry;

          (iv) make reasonable efforts before a witness appears at the
     grand jury to determine that the testimony is needed, including




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     offering the witness or witness' counsel a voluntary pre-
     appearance conference;

         (v) grant reasonable requests for extensions of dates for
     appearance and production of documents when doing so does not
     impede the grand jury's investigation; and

          (vi) resist dilatory tactics by witnesses that undermine the
     grand jury's investigation, authority, or credibility.

         (e) The prosecutor should examine witnesses with courtesy and
     in a manner designed to elicit truthful testimony, and should:

          (i) consider warning a witness suspected of perjury of the
     obligations to tell the truth;

          (ii) insist upon definite answers that will:

           (A) fully inform the members of grand jury; and

           (B) establish a clear record so that a witness committing
     perjury or contempt can be held responsible for such actions;

           (iii) inform grand jury witnesses of their right to consult with
     their attorneys to the extent provided by the policy, procedure or
     law of the jurisdiction; and

           (iv) seek a compulsion order only when the testimony sought
     is in the public interest, there is no other reasonable way to elicit
     such testimony, and the witness has refused to testify or has
     indicated an intent to invoke the privilege against self-
     incrimination.

         (f) In determining whether obtaining testimony from a culpable
     witness will outweigh the cost of granting immunity, a prosecutor
     should consider the following factors:

          (i) the relative culpability of the witness to be immunized as
     compared with the person against whom the testimony will be
     offered;

          (ii) the gravity of the crime(s) being investigated;

          (iii) the probability that the testimony would advance the
     investigation or an eventual prosecution;

         (iv) the gravity of the crime(s) for which the witness would be
    granted immunity;

          (v) the character and history of the witness being considered
    for immunity, including how these factors might affect the
    witness's credibility;

          (vi) the scope of the immunity that the witness would receive;

         (vii) the risk that the immunized witness would lie or feign
    lack of memory;

        (viii) the risk that the immunized witness would falsely claim
    responsibility for criminal acts committed by another; and




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         (ix) the potential for the grand jury testimony to enhance
    truthful testimony by hostile or reluctant witnesses at trial or
    provide evidence to prove perjury if a witness lies at trial.

        (g) Ordinarily, the prosecutor should not seek to compel
    testimony from a close relative of a target of an investigation by
    threatening prosecution or offering immunity, unless:

         (i) the relative participated criminally in an offense or criminal
    enterprise with the target and the testimony sought would relate to
    that enterprise's activities;

         (ii) the testimony sought relates to a crime involving
    overriding prosecutorial concerns; or

         (iii) comparable testimony is not readily available from other
    sources.

        (h) Ordinarily, the prosecutor should give notice to a target of a
    grand jury investigation and offer the opportunity for the target to
    testify without immunity before the grand jury. However, notice
    need not be provided if there is a reasonable possibility it will
    result in flight of the target, endanger other persons, or obstruct
    justice. Prior to taking a target's testimony, the prosecutor should
    advise the target of the privilege against self-incrimination and
    obtain a waiver of that right.

        (i) A prosecutor with personal knowledge of non-frivolous
    evidence that directly negates the guilt of a subject of the
    investigation should present or otherwise disclose that evidence to
    the grand jury. If evidence is provided to the prosecutor by the
    subject or target of the investigation and the prosecutor decides
    not to provide the evidence to the grand jury, the prosecutor
    should notify the subject, target or their counsel of that decision
    without delay, so long as doing so would not jeopardize the
    investigation or prosecution or endanger others.

    STANDARD 2.10 TECHNOLOGICALLY-ASSISTED PHYSICAL
    SURVEILLANCE

       (a) As used in these Standards, "technologically-assisted
    physical surveillance" includes: video surveillance, tracking
    devices, illumination devices, telescopic devices, and detection
    devices.

        (b) In deciding whether to use technologically-assisted physical
    surveillance, the prosecutor should consider the potential benefits,
    including:

        (i) detecting the criminal possession of objects that are
    dangerous or difficult to locate; and

         (ii) seeing or tracing criminal activity by means that are
    minimally intrusive and limiting the risks posed to the public and
    law enforcement personnel.




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        (c) In deciding whether to use technologically-assisted physical
     surveillance, the prosecutor should consider the legal and privacy
     implications for subjects, victims and third parties. The prosecutor
     should seek to use such surveillance techniques in proportion to
     the seriousness of the criminal activity being investigated and the
     needs of the particular investigation and in a manner designed to
     be minimally intrusive.

         (d) In deciding whether to use technologically-assisted physical
     surveillance, the prosecutor should consider the legal requirements
     applicable to the technique under consideration, and whether those
     requirements have been met.



     STANDARD 2.11 CONSENSUAl INTERCEPTION,
     TRANSMISSION AND RECORDING OF COMMUNICATIONS

         (a) As used in these Standards "consensual interception" is an
     electronic, digital, audio or video interception and recording of
     communications to which one or more but not all participants in
     the communications has consented.

         (b) In deciding whether to use consensual interception, the
     prosecutor should consider the potential benefits, including
     obtaining direct, incriminating, and credible evidence that can be
     used alone or to corroborate other information.

         (c) In deciding whether to use consensual interception, the
     prosecutor should consider the potential risks, including:

          (i) problems of audibility and admissibility;

          (ii) the danger of detection, including physical risk to those
     participating, and the risk of disclosure of the investigation;

          (iii) selective recording of communications by the cooperating
     party;

          (iv) the danger of obtaining false, misleading or self-serving
     statements by a party to the conversation who is aware or
     suspects that the conversation is being recorded;

          (v) the risk that the consenting individual will conspire with
     the subject of the investigation to create false or misleading
     statements; and

          (vi) the risk that the import of a conversation will be distorted
     by the cooperating party.

         (d) To maximize the benefits and to minimize the risks of using
     consensual interception, the prosecutor should:

          (i) obtain written or recorded consent from the consenting
     individual; and minimize to the extent practicable recording outside
     the presence of law enforcement agents and, if such a recording
     occurs or will occur:




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           (A) have law enforcement agents test and activate the
    recording equipment before the cooperating party meets with the
    subject; and

           (B) minimize the necessity for the cooperating party to
    operate the recording equipment and, if it is necessary for the
    cooperating party to operate the equipment, provide that individual
    specific directions on how to operate the equipment and strict
    instruction to be present with it during such operation.

       (e) The prosecutor, in consultation with the law enforcement
    agents, should regularly review all or selected recordings obtained
    during consensual interceptions.

        (f) The prosecutor should take steps to ensure law enforcement
    agents comply with procedures relating to the acquisition of,
    custody of, and access to electronic equipment and recording
    media and to the secure preservation of any recordings produced
    whether they are obtained by consenting individuals or by law
    enforcement agents.



    STANDARD 2.12 NON-CONSIENSUAliEliECTRONIC
    SUIRVIEillANCIE

        (a) As used in these Standards "non-consensual electronic
    surveillance" is the court-ordered interception of communications,
    actions, or events.

        (b) In deciding whether to request a court order for non-
    consensual electronic surveillance, the prosecutor should consider
    the potential benefit of obtaining direct, incriminating, and credible
    evidence that can be used alone or to corroborate other
    information.

        (c) In deciding whether to request a court order for non-
    consensual electronic surveillance, the prosecutor should consider
    the potential costs and risks, including:

         (i) whether the suspected criminal activity being investigated
    is sufficiently serious and persistent to justify:

          (A) the significant intrusion on the privacy interests of
    targets and innocent third parties;

          (B) the need to obtain periodic reauthorization for electronic
    surveillance; and

          (C) the financial and resource costs associated with such
    surveillance.

         (ii) whether all requirements of the law are met.

        (d) The prosecutor, including an applicant, should be aware of
    the reporting requirements under federal and state law and
    heightened obligations and accountability to the court in
    connection with the application and use of non-consensual
    electronic surveillance.



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         (e) Prior to the initiation of non-consensual electronic
     surveillance, the prosecutor should review the following with the
     law enforcement agents and contract personnel such as
     interpreters who will assist in the execution of the order:

         (i) the scope of the order;

         (ii) obligations of the monitoring law enforcement agents and
    monitoring personnel to minimize the interception of privileged
    conversations and other conversations outside the scope of the
    order and to alert the prosecutor promptly when recording
    evidence of new crimes;

         (iii) the prohibition on listening without recording;

         (iv) rules related to protecting the integrity and chain of
    custody of recordings;

        (v) instructions to contact the prosecutor whenever a
    noteworthy event occurs, or there is a question regarding the
    execution of the order; and

         (vi) the need to adhere to non-disclosure requirements.

        (f) The prosecutor should stay informed of actions of law
    enforcement agents and contract personnel throughout the use of
    non-consensual electronic surveillance and should take appropriate
    steps to determine whether the required procedures are being
    followed by those carrying out the surveillance.



    STANDARD 2.13 CONDUCTING PARAllEl CIVIl AND
    CRIMINAl INVESTIGATIONS
        (a) In deciding whether to conduct a criminal investigation and
    throughout any such investigation that is undertaken, the
    prosecutor should consider whether society's interest in the matter
    might be better or equally vindicated by available civil, regulatory,
    administrative, or private remedies.

       (b) When doing so would not compromise a proper
    prosecutorial interest, and to the degree permitted by law, the
    prosecutor should cooperate with other governmental authorities
    regarding their investigations for the purpose of instituting
    remedial actions that are of legitimate concern to such entities. In
    the course of such cooperation, the prosecutor:

        (i) should retain sole control of the criminal investigation and
    maintain independent judgment at all times;

         (ii) should be aware of rules that prohibit or restrict the
    sharing or disclosure of information or material gathered through
    certain criminal investigative techniques;

         (iii) should not be a party to nor allow the continuation of
    efforts by civil investigative agencies or attorneys to use the
    criminal process for the purpose of obtaining a civil settlement;
    and



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          (iv) may, in order to preserve the integrity of a criminal
    investigation or prosecution, ask a civil investigative agency to
    refrain from taking an investigative step or bringing an action but,
    in considering whether to do so, should consider the detriment to
    the public that may result from such forbearance.

        (c) A prosecutor should consider the appropriateness of non-
    criminal or global (civil and criminal resolutions) dispositions
    suggested by subjects or targets, whether or not they choose to
    cooperate, and may consider proposals by them to include civil or
    regulatory sanctions as part of a disposition or cooperation
    agreement.



    STANDARD 2.14 TERMINATING THE INVESTIGATION,
    !RETENTION Of EVIDENCE AND !POST-INVESTIGATION
    ANALYSIS
       (a) The prosecutor should diligently pursue the timely
    conclusion of criminal investigations.

        (b) The prosecutor's office should periodically review matters
    under investigation in the office and determine whether the
    interests of justice would be served by terminating the
    investigation.

       (c) The prosecutor should determine whether information
    obtained in investigations should be made available for civil
    enforcement purposes, administrative remedies, or for other
    purposes consistent with law and the public interest.

        (d) To the extent feasible, the prosecutor and members of the
    investigative agencies should analyze investigations
    retrospectively, to evaluate techniques and steps that worked well
    or that proved to be deficient.

        (e) Post-investigation analysis by the prosecutor's office should
    include seeking to identify ways other than prosecution to prevent,
    minimize or deter similar crimes from occurring in the future.

       (f) Prosecutors should be aware of the requirements and office
    practices regarding the preservation of investigative records and of
    their compliance obligations with regard to information access and
    privacy law provisions.

       (g) To the extent practicable, the prosecutor should, upon
    request, provide notice of termination of the investigation to
    subjects who became aware of the investigation.

        (h) Upon termination of the investigation and related
    proceedings, physical evidence other than contraband should be
    returned promptly to the person from whom it was obtained,
    absent an agreement , court order or requirement of law to the
    contrary.




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    STANDARD 2.15 GUIDANCE AND TRAINING FOR liNE
    PROSECUTORS
       (a) A prosecutor's office should be organized in a manner to
    provide line prosecutors guidance consistent with these Standards.

       (b) To guide the exercise of discretion, a prosecutor's office
    should:

        (i) encourage consultation and collaboration among
    prosecutors;

          (ii) appoint supervisors with appropriate experience, strong
    skills and a commitment to justice and ethical behavior;

           (iii) require consultation and approval at appropriate
    supervisory levels for investigative methods of different levels of
    intrusiveness, risk and costs;

          (iv) provide regular supervisory review throughout the course
    of investigations;

         (v) regularly review investigative techniques and promote
    best practices to reflect changes in law and policy;

           (vi) create and implement internal policies, procedures, and
    standard practices that teach and reinforce standards of excellence
    in performance, professionalism, and ethics;

         (vii) create and implement policies and procedures that
    protect against practices that could result in unfair hardships, the
    pursuit of baseless investigations, and the bringing of charges
    against the innocent;

           (viii) develop and support practices designed to prevent and
    to rectify conviction of the innocent.

        (ix) determine what types of investigative steps require formal
    supervisory approval, and at what supervisory level, and

        (x) require line attorneys to consult with supervisors or
    experienced colleagues when making significant investigative
    decisions absent exigent circumstances.

          (c) A prosecutor's office should provide guidance and training
    by:

           (i) strongly encouraging consultation and collaboration among
    line assistants;

          (ii) appointing supervisors with appropriate experience and
    strong commitments to justice, and fostering close working
    relationships between supervisors and those they supervise;

           (iii) providing formal training programs on investigative
    techniques and the ethical choices implicated in using them; and

           (iv) creating internal policies and standard practices regarding
    investigations that memorialize and reinforce standards of
    excellence, professionalism, and ethics. In doing so:




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           (A) policy and practice materials should be regularly
     reviewed and updated and should allow flexibility for the exercise
    of prosecutorial discretion, and

           (B) written policies and procedures should not be a
    substitute for regular training for all office members and a
    commitment to mentoring less-experienced attorneys.

        (d) When a line prosecutor believes the needs of an
    investigation or some extraordinary circumstance require actions
    that are contrary to or outside of existing policies, the prosecutor
    should seek prior approval before taking such actions.

       (e) A prosecutor's office should develop policies and procedures
    that address the initiation and implementation of the investigative
    tools discussed in these Standards in advance of the specific needs
    of an investigation.



    STANDARD 2.16 SPECIAl PROSECUTORS, INDEPENDENT
    COUNSEl AND SPECIAl PROSECUTION UNITS

        (a) As used in these Standards, a "special prosecutor" or an
    "independent counsel" is a prosecutor serving independently from
    the general prosecution office under a particularized appointment
    and whose service in that role typically ends after the purpose of
    the appointment is completed. A "special prosecution unit" is
    typically a unit that focuses on a particular type of crime, criminal
    activity, or victim.

        (b) Although the special prosecutor and the special prosecution
    unit are removed from the responsibilities of a general prosecution
    office, a prosecutor in this role should:

         (i) be bound by the same policies and procedures as regular
    prosecutors in their jurisdiction, unless to do so would be
    incompatible with their duties;

         (ii) base judgments about the merits of pursuing a particular
    investigation upon the same factors that should guide a regular
    prosecutor, including the seriousness of the offense, the harm to
    the public, and the expenditure of public resources; and

         (iii) in choosing matters to investigate, consider the danger
    that the narrow focus or limited jurisdiction of the prosecutor or
    the unit will lead to the pursuit of what would, in a general
    prosecution office, be considered an insubstantial violation, or one
    more appropriately resolved by civil or administrative actions.



    STANDARD 2.17 USE OIF INFORMATION, MONEY, OR
    RESOURCES PROVIDED BY NON-GOVERNMENTAl SOURCES

        (a) The prosecutor may use information provided by non-
    governmental sources that is pertinent to a potential or existing
    criminal investigation. However, consistent with the principles in




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     Standard 2.1, the prosecutor should make an independent
     evaluation of the information and make an independent decision as
     to whether to allocate or continue to allocate resources to
     investigating the matter.
          (b) If the law of the jurisdiction permits the acceptance of
     financial or resource assistance from non-governmental sources,
     the decision to accept such assistance should be made with caution
     by the chief public prosecutor or an accountable designee after
     careful consideration of:
         (i) the extent to which the law of the jurisdiction permits the
     acceptance of financial or resource assistance;
         (ii) the extent to which the offer is in the public interest, as
     opposed to an effort to achieve the limited private interests of the
     non-governmental sources;
          (iii) the extent to which acceptance may result in foregoing
     other cases;
          (iv) the potential adverse impact on the equal administration
     of the criminal law;
          (v) the extent to which the character and magnitude of the
     assistance might unduly influence the prosecutor's subsequent
     exercise of investigative and prosecutorial discretion;

          (vi) the likelihood that the community may view accepting the
     assistance as inconsistent with the fair and equal administration of
     criminal justice;
          (vii) the likelihood that accepting assistance from private
     sources may create an appearance of undue influence over law
     enforcement; and
         (viii) the extent to which financial or resource assistance
     would enhance or enable the investigation of criminal activity;
         (c) The prosecutor should consider the risk that encouraging
     information gathering from non-governmental sources may lead to
     abusive, dangerous or even criminal actions by private parties.

         (d) The office of the prosecutor should have procedures
     designed to protect the independent exercise of investigative
     discretion from being influenced by the receipt of outside financial
     or resource assistance, including careful accounting and
     recordkeeping of the amounts and terms of such assistance and
     clear disclosure that providing assistance will not guide the
     exercise of investigative or prosecutorial discretion.
         (e) The prosecutor , consistent with the law of the jurisdiction,
     should disclose significant non-governmental assistance to relevant
     legislative or public bodies having oversight over the prosecutor's
     office and, when appropriate, the public.
         (f) Non-governmental assistance should be disclosed to
     affected parties as part of the discovery process.




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     STANDARD 2.18 USE OF SENSITIVE, ClASSIFIED OR OTHER
     INFORMATION IMPliCATING INVESTIGATIVE PRIVIlEGES
         (a) The prosecutor should be alert to the need to balance the
     government's legitimate interests in protecting certain information
     from disclosure, and the legitimate interests and Constitutional
     rights of the public and of defendants favoring disclosure.

         (b) When appropriate, the prosecutor should request court
     orders designed to protect the disclosure of law enforcement
     means and methods, informant identities, observation posts, and
     such other information that might jeopardize future investigations
     or the safety or reputation of persons directly or indirectly involved
     in an investigation.

         (c) In investigations believed to have the potential to include
     classified or sensitive information, prosecutors should seek to
     obtain the relevant information and consult laws, regulations and
     other requirements for handling such information before making
     any charging decisions.



                                    PART 3:
         PROSECUTOR'S ROllE IN RESOlVING INVESTIGATION
                            PROBlEMS


     STANDARD 3.1 PROSECUTOR'S ROllE IN ADDRESSING
     SUSPECTED lAW ENFORCEMENT MISCONDUCT
         (a) If the prosecutor has reason to suspect misconduct or
     unauthorized illegal activity at any level of the prosecutor's office
     or in any agency or department engaged in a criminal
     investigation, the prosecutor should promptly report the suspicion
     and the reason for it to appropriate supervisory personnel in the
     prosecutor's office who have authority to address the problem, or
     to the appropriate inspector general's office, or similar agency, if
     reporting within the prosecutor's own office is problematic.
     Reporting may also be required to comply with requirements of the
     applicable rules of professional conduct, the Model Rules and the
     law of the jurisdiction.

        (b) If the prosecutor has reason to believe that a criminal
     investigation or prosecution is, or is likely to be, adversely affected
     by incompetence, lack of skilled personnel or inadequate resources
     in the prosecutor's office or in any other relevant agency or
     department, the prosecutor should promptly report that belief and
     the reason for it to supervisory personnel in the prosecutor's office.

          (c) A supervisory prosecutor who receives an allegation of
     misconduct, unauthorized illegal conduct, or who receives an
     allegation of incompetence, inadequate resources, or lack of skilled




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     personnel that is, or is likely to, adversely affect a criminal
     investigation, should undertake a prompt and objective review of
    the facts and circumstances or refer the matter to an appropriate
    agency or component responsible for addressing such allegations.
    When practicable, the line prosecutor making any such allegations
    should not be involved in subsequent investigation(s) relating to
    the allegation(s).

         (d) If the prosecutor's office concludes that there is a
     reasonable belief that personnel in any agency or department have
    engaged in unauthorized illegal conduct, the prosecutor's office
    should initiate a criminal investigation into the conduct or seek the
     initiation of such an investigation by an appropriate outside agency
    or office.

         (e) If the prosecutor's office concludes that there was not
     unauthorized illegal conduct, but concludes that there was
     incompetence or non-criminal misconduct, the prosecutor's office
    should take appropriate action to notify the relevant agency or
    department, and if within the prosecutor's own office, to impose
    sanctions for the conduct.

         (f) Decisions on how to respond to allegations of unauthorized
     illegal conduct, misconduct, or significant incompetence should
    generally be made without regard to adverse consequences on
     pending cases or investigations.



    STANDARD 3.2 PROSECUTOR'S ROlE IN ADDRIESSSIING
    SUSPECTED JUDICIAl MISCONDUCT

        (a) Although judges are not exempt from criminal investigation,
    the prosecutor's office should protect against the use of false
    allegations as a means of harassment or abuse that may impact
    the independence of the judiciary.

         (b) If a line prosecutor has reason to believe that there is
    significant misconduct or illegal activity by a member of the
    judiciary, the line prosecutor should promptly report that belief and
    the reasons for it to supervisory personnel in the prosecutor's
    office.

         (c) Upon receiving from a line prosecutor, or from any source,
    an allegation of significant misconduct or illegal conduct by a
    member of the judiciary, a supervisory prosecutor should
    undertake a prompt and objective review of the facts and
    circumstances.

         (d) If the prosecutor's office has a reasonable belief that a
    member of the judiciary has engaged in criminal conduct, the
    prosecutor's office should initiate, or seek the initiation of, a
    criminal investigation.

        (e) If the prosecutor's office concludes that a member of the
    judiciary has not engaged in illegal conduct, but has engaged in




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     non-criminal misconduct, the prosecutor's office should take
     appropriate action to inform the relevant officer of the judicial
     authorities. Reporting may also be required to comply with
     requirements of the applicable rules of professional conduct, the
     Model Rules and the law of the jurisdiction.

        (f) The prosecutor's office should take reasonable steps to
     assure the independence of any investigation of a judge before
     whom the prosecutor's office practices. In some instances, this
     may require the appointment of a "pro tem" or "special" prosecutor
     or use of a "fire-wall" within the prosecutor's office.



     STANDARD 3.3 IPIROSECUTOIR'S !ROlE IN ADDRESSING
     SUSPECTED MISCONDUCT BY DEFENSE COUNSEl

        (a) Although defense counsel are not exempt from criminal
     investigation, the prosecutor's office should protect against the use
     of false allegations as a means of harassment or abuse that may
     impact the independence of the defense counsel or the
     Constitutionally protected right to counsel.

        (b) If a line prosecutor has reason to believe that defense
     counsel is engaging in criminal conduct, is violating the duty to
     protect a client, or is engaging in unethical behavior or misconduct,
    the prosecutor should promptly report that belief and the reasons
     for it to supervisory personnel in the prosecutor's office.

        (c) Upon receiving from a line prosecutor, or from any source,
     an allegation of misconduct or illegal conduct by defense counsel, a
     supervisory prosecutor should undertake a prompt and objective
     review of the facts and circumstances.

        (d) If the prosecutor's office has a reasonable belief that
     defense counsel has engaged in illegal conduct, the prosecutor's
     office should initiate, or seek the initiation of, an investigation into
    the conduct.

        (e) If the prosecutor's office concludes that defense counsel has
     not engaged in illegal conduct, but has engaged in non-criminal
     misconduct as defined by the governing ethical code and the rules
     of the jurisdiction, the prosecutor's office should take appropriate
     action to inform the appropriate disciplinary authority.

        (f) The prosecutor's office should take reasonable steps to
    assure the independence of any investigation of a defense counsel
     including, if appropriate, the appointment of a pro tem or special
     prosecutor or use of a "fire-wall" within the prosecutor's office. At a
     minimum, an investigation of defense counsel's conduct should be
    conducted by a prosecutor who has not been involved in the initial
     matter or in ongoing matters with that defense counsel.

        (g) The prosecutor investigating defense counsel should
    consider whether information regarding conduct by defense
    counsel should be provided to a judicial officer involved in




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        (a) The prosecutor should resist political pressure intended to
    influence the conduct, focus, duration or outcome of a criminal
    investigation.

        (b) The prosecutor should generally not make decisions related
    to a criminal investigation based upon their impact on the political
    process.

        (c) When, due to the nature of the investigation or the identity
    of investigative targets, any decision will have some impact on the
    political process (such as an impending election), the prosecutor
    should make decisions and use tliscretion in a principled manner
    and in a manner designed to limit the political impact without
    regard to the prosecutor's personal political beliefs or affiliations.

       (d) The prosecutor should carefully consider the language in
    Standard 1.5 ("Contacts with the Public During the Investigative
    Process") when making any statements or reports regarding a
    decision to prosecute, or to decline to prosecute, in a matter that
    may have some impact on the political process.



    STANDARD 3.7 REVIEW AND OVERSIGHT OF CRIMINAl
    INVESTIGATIONS BY GOVERNMENT AGENCIES AND
    OFFICIAlS
       (a) Prosecutors' offices should attempt to respond in a timely,
    open, and candid manner to requests from public officials for
    general information about the enforcement of laws under their
    jurisdiction or about law reform matters. However, if public officials
    seek information about ongoing or impending investigations, the
    prosecutors' offices should consider the potential negative impact
    of providing such information and should inform public officials
    about such concerns.

       (b) Generally, responses to public officials should be made by
    high-ranking officials in the prosecutor's office who have policy-
    making authority. Prosecutors' offices should resist allowing line-
    attorneys to respond to requests for information by public officials.

        (c) Generally, responses to information requests by public
    officials should be through testimony or by providing pertinent
    statistics and descriptive and analytical reports, and not by
    providing information about particular matters. Prosecutors' offices
    should resist requests for materials that are subject to deliberative
    process or work product privileges related to pending criminal
    investigations or closed investigations whose materials have not
    otherwise been made public, and should oppose disclosure of
    information that would adversely affect a person or entity.

        (d) Prosecutor's offices may respond to requests about the
    handling of fully adjudicated cases. Absent unusual circumstances,
    information about adjudicated cases should be provided by high-




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Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section   Page 38 of 38


    ranking officials with policy-making authority, and not by line
    attorneys.

        (e) The Prosecutor's office should establish clear and consistent
    policies to address its responsibilities under public disclosure laws
    and with regard to the public's potential access to closed matters.
    The Prosecutor's office should provide sufficient resources to make
    prompt and appropriate replies to any public disclosure requests.

     Back to Top

    Copyright American Bar Association, http://www"abanetorg



           Crimi!l~l]uiiiccStciio:~




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Standards on Prosecutorial Investigations (Table of Contents) Criminal Justice Section
                                                                     J                        Page 36 of 38


     overseeing aspects of the investigation in which the misconduct
     occurred.

        (h) The prosecutor investigating defense counsel who is
     representing a client in a criminal matter under the jurisdiction of
     the prosecutor's office ordinarily should notify the attorney and the
     court in a timely manner about the possibility that potential
     charges against the attorney may create a conflict of interest.

     STANDARD 3.4 PROSECUTOR'S ROLE IN ADDRESSING
     SUSPECTED MISCONDUCT BY WITNESSES, INFORMANTS OR
     JURORS

        (a) If a line prosecutor has reason to believe that there has
     been illegal conduct or non-criminal misconduct by witnesses,
     informants, or jurors, the prosecutor should seek supervisory
     review of the matter.

        (b) Upon receiving an allegation of unauthorized illegal conduct
     or non-criminal misconduct by witnesses, informants or jurors, the
     prosecutor's office should undertake a prompt and objective
     review. If there is a reasonable belief that there has been illegal
     conduct or non-criminal misconduct, the prosecutor's office should
     initiate an investigation into the conduct. All relevant evidence
     should be preserved in the event it must be disclosed if criminal
     charges are filed against the individual alleged to have engaged in
     the conduct.

        (c) If the misconduct relates to the official duties of a juror or
     witness, it must also be reported to an appropriate judicial officer.



     STANDARD 3.5 IlliEGAllY OBTAINED IEVIDIENCE

        (a) If a prosecutor reasonably believes that evidence has been
     illegally obtained, the prosecutor should consider whether there
     are potential criminal acts that should be investigated or
     misconduct that should be addressed or reported. The prosecutor
     should be familiar with the laws of their jurisdiction regarding the
     admissibility of illegally obtained evidence.

        (b) The prosecutor should take appropriate steps to limit the
    taint, if any, from the illegally obtained evidence and determine if
    the evidence may still be lawfully used.

        (c) The prosecutor should notify the parties affected by the
     illegal conduct at the earliest time that will not compromise the
     investigation or subsequent investigation, or at an earlier time if
     required by law.



    STANDARD 3.6 RESPONDING TO POLITICAL PRESSURE AND
    CONSIDERATION OF THE IMPACT OF CRIMINAL INVESTIGATIONS
    ON THE POLITICAL PROCESS




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