712
Pretrial Diversion
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- Divertees are initially selected by the U.S. Attorney based
on
the eligibility criteria stated in USAM
9-22.100:
- At the pre-charge stage; or
- At any point (prior to trial) at which a PTD agreement is
effected.
- Participation in the program by the offender is voluntary:
- The divertee must sign a contract agreeing to waive his/her rights
to a speedy trial and presentment of his/her case within the statute of
limitations;
- The divertee must have advice of counsel, and if he/she cannot afford
counsel, one will be appointed for him/her upon his/her application to the
Chief
Pretrial Services Officer (or Chief Probation Officer). Appointment of
Counsel
will be made through the United States Magistrate. Inquiries by magistrates
should be directed to the Criminal Justice Act Division, Administrative
Office
of the United States Courts, (202) 727-2800, for expenditure
authorizations.
- All information obtained in the course of making the decision to divert
an
offender is confidential, except that written statements may be used for
impeachment purposes. See USA Form 185, Letter to Offender, this Manual at 713.
- Upon determining eligibility of an offender for PTD, the U.S. Attorney
should refer the case along with the investigative agent's report to either
the
Chief Pretrial Services Officer or the Chief Probation Officer for a
recommendation on the potential suitability of the offender for supervision.
See USA Form 184, this Manual at
714.|B814
The Chief Pretrial Services Officer (or the Chief Probation Officer) may
make
preliminary recommendations to the U.S. Attorney. As part of the background
investigation, Pretrial Services will arrange with the United States
Marshal's
Office to have the divertee fingerprinted and to have such fingerprints
submitted
to the FBI on card FD-249. At the same time Pretrial Services should
request
notification of any prior record on the divertee from the FBI Identification
Division Records.
- If it is determined that PTD is appropriate for an offender,
supervision
should be tailored to the offender's needs and may include employment,
counseling, education, job training, psychiatric care, etc. Many districts
have
successfully required restitution or forms of community service as part of
the
pretrial program. Innovative approaches are strongly encouraged.
- The program of supervision which is recommended is outlined in the
PTD
Agreement, agreed upon by all parties, and administered by Pretrial
Services.
- The Pretrial Diversion Agreement. The diversion period begins
upon
execution of a Pretrial Diversion Agreement. The Agreement (USA Form 186,
Criminal Resource Manual at 715) outlines the
terms
and conditions of supervision and is signed by the offender, his/her
attorney,
the prosecutor, and either the Chief Pretrial Services Officer or the Chief
Probation Officer. The offender must acknowledge responsibility for his or
her
behavior, but is not asked to admit guilt. The period of supervision is not
to
exceed 18 months, but may be reduced. In the case of Federal employees, the
PTD
Agreement will not require the offender's resignation from Federal service
but
will explicitly state that administrative action by the Federal agency will
not
be precluded and need not be delayed by the prosecutor's disposition of the
case
through diversion. The PTD Agreement may require that the U.S. Attorney
provide
a copy of the Agreement to the Federal agency by which the divertee is
employed.
- The Chief Pretrial Services Officer (or the Chief Probation
Officer)
shall submit an FBI Form 1-12 "Flash Notice," indicating diversion and
requesting
notification if an arrest occurs.
- Successful completion of program/termination from program. The
U.S.
Attorney will formally decline prosecution upon satisfactory completion of
program requirements. Notice of satisfactory completion will be provided to
the
U.S. Attorney by either the Chief Pretrial Services Officer or the Chief
Probation Officer. In addition, the Chief Pretrial Services Officer (or the
Chief Probation Officer) will file an FBI Disposition Form R-84 so that the
record will indicate successful completion/charges dropped.
- Breach of Agreement. Upon breach of conditions of the Agreement
by
the divertee, the Chief Pretrial Services Officer (or the Chief Probation
Officer) will so inform the U.S. Attorney, who, in his/her discretion, may
initiate prosecution. When prosecution is resumed, the U.S. Attorney must
furnish the offender with notice.
- The decision to terminate an individual from continuing to
participate
in pretrial diversion based upon breach of conditions rests exclusively with
the
U.S. Attorney, with advice from either the Chief Pretrial Services Officer
or the
Chief Probation Officer.
[cited in USAM 9-22.200] | |