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Pretrial Diversion

Are Pretrial Diversions Available in Federal Cases?

A pretrial diversion (PTD) is a legal mechanism that allows certain accused individuals to avoid standard prosecution and potential conviction by participating in various programs or fulfilling specific conditions. 

This arrangement provides an alternative route to traditional trial proceedings, focusing on rehabilitation and reintegration rather than punitive measures. 

Pretrial Diversion in Federal Criminal Cases
A federal pretrial diversion allows people accused of certain crimes to avoid a criminal conviction.

Most states offer some version of diversionary programs, most of which are geared toward first-time or non-violent offenders. But is pre-trial diversion possible for you if you're accused of a federal crime?

The answer is yes, with conditions. If you are eligible, at your attorney's request and the discretion of prosecutors, you may be able to participate in a federal pretrial diversion program that, when completed, will result in a dismissal of the charges and no mark on your criminal record.

Simply put, federal pretrial diversion offers an opportunity for people facing federal criminal charges to avoid a conviction, prison time, and the stress and expense of a trial.

Anyone accused of crimes by the federal government can enter pretrial diversion if eligible. While there is no requirement that this occurs before a federal indictment, it typically occurs before a grand jury returns an indictment. To maximize your chances of pretrial diversion, you would be wise to retain an experienced federal criminal defense attorney early in the criminal process

The concept of pretrial diversion is straightforward. If an eligible accused person voluntarily agrees to a period of supervision by federal probation officers, they could avoid prosecution or conviction if they complete the diversion program.

What is Federal Pretrial Diversion?

At its discretion, the United States Attorney's Office (USAO) can divert certain cases from the traditional prosecutorial path. The USAO administers these programs under the Department of Justice (DOJ) umbrella. 

The authority for these programs comes from the Justice Manual, Title 9, Chapter 22.000, which outlines the purpose, eligibility, and operation of pretrial diversion programs.

Federal Pretrial Diversion

In the federal legal system, pretrial diversions are relatively less common than in state systems but exist for certain offenses and eligible individuals. 

Generally, eligibility is determined based on the nature of the crime, the defendant's criminal history, and the potential for rehabilitation. The overarching goal is to address the underlying issues leading to criminal behavior, benefiting the individual and society.

To enter pretrial diversion, the accused must usually sign a voluntary agreement to waive any speedy trial and statute of limitation defenses. They must also have an attorney to negotiate during the diversion process.

Most federal prosecutors require the accused to submit a proffer interview before agreeing to pretrial diversion. A proffer is an “off the record” meeting between the accused person, defense lawyer, and the government. 

The government will ask questions about the alleged crime during this meeting. If the accused person tells the truth, their statements are not typically admissible against them in a later trial.

What are the Eligibility Criteria?

A defendant must meet several criteria to be eligible for a federal PTD program. The accused individual must not have a prior criminal record and must not pose a risk to society. 

Furthermore, the offense committed must be one that qualifies for diversion under the guidelines set forth by the DOJ.

Additionally, the accused must admit responsibility for their actions. This does not constitute a legal admission of guilt but rather an acknowledgment of wrongdoing. Finally, the prosecutor must agree that pretrial diversion is in the public interest.

The types of offenses that can qualify for pretrial diversion vary but are generally non-violent, first-time offenses. Examples might include drug offenses, fraud, embezzlement, or other white-collar crimes.

What Crimes Are Ineligible for Pretrial Diversion?

The Justice Manual disqualifies certain crimes from being eligible for pretrial diversion. You will be considered ineligible if you're accused of any of the following:

  • Child-Related Offenses: These include crimes related to child exploitation or child pornography, as well as offenses involving sexual abuse or sexual assault.
  • Violent Crimes: Offenses that result in serious bodily injury or death are generally excluded from pretrial diversion eligibility.
  • Weapon-Related Offenses: Crimes involving the brandishing or using a firearm or other deadly weapon are typically not eligible for pretrial diversion.
  • Public Trust Violations: Offenses committed by a public official or former public official arising out of an alleged violation of a public trust fall under the category of ineligible offenses.
  • National Security and Foreign Affairs Offenses: Crimes related to national security, including terrorism offenses or those connected to foreign affairs, are typically ineligible for pretrial diversion.
  • Organized Crime Involvement: Offenses in which the individual held a significant managerial role in a large-scale criminal organization. Violent gangs are generally excluded from pretrial diversion eligibility.

What is the Pretrial Diversion Process?

A PTD can be offered and agreed to at any point in your federal case. Still, in most cases, it occurs before indictment, usually as a measure to avoid official indictment. 

Your attorney may request consideration, or prosecutors may inform your attorney that PTD is available. As noted, you usually meet for an off-the-record proffer interview with your attorney and the prosecutor to begin preliminary discussions. 

The prosecutor will consider the nature of the offense, the defendant's history, and the public interest in making this decision.

Under federal law, the United States Probation Office has the authority to supervise citizens referred for pretrial diversion. This voluntary supervision requires the accused to agree to the terms and meet specific qualifications for pretrial diversion. 

Your statements made during the pretrial diversion interview are typically not admissible against you in a later trial. If pretrial diversion is offered, you must agree to participate and fulfill the conditions set forth by the program. 

These conditions are tailored to the defendant's needs and issues for the purpose of rehabilitation and might include any of the following:

  • Required restitution to victims.
  • Employment requirements.
  • Job training.
  • Counseling or psychiatric care.
  • Substance abuse treatment or
  • Other requirements pertinent to the offense.

As part of the agreement, you must acknowledge responsibility for your actions, but this is not an official guilty plea, as you will be avoiding conviction with this program. 

You will also sign documentation voluntarily waiving your right to a speedy trial and statute of limitation defenses. In other words, if you fail to complete the program, prosecutors may file charges against you for the original offense even after the statute of limitations expires. Throughout the program, your progress will be monitored, usually by a Pretrial Services Officer. 

If you complete the program, the charges will generally be dismissed. However, if you fail to meet the program's conditions, the charges may be reinstated, and the case will proceed to trial. Contact our federal criminal defense lawyers for more information. Eisner Gorin LLP has offices in Los Angeles, California.

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