93-7
| IN THE UNITED STATES DISTRICT COURT |
| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA |
| IN RE: | : | |
| PRETRIAL DIVERSION | : | STANDING ORDER #93-7 |
| : | ||
| : |
ORDER OF COURT
The Court hereby adopts the attached policy regarding the Pretrial Diversion Program.
| /s | |
| SYLVIA H. RAMBO, Chief U.S. District Judge | |
| /s | |
| William W. Caldwell, U.S. District Judge | |
| /s | |
| Edwin M. Kosik, U.S. District Judge | |
| /s | |
| James F. McClure, U.S. District Judge | |
| /s | |
| William J. Nealon, U.S. District Judge | |
| /s | |
| Malcolm Muir, U.S. District Judge | |
| /s | |
| Richard P. Conaboy, U.S. District Judge | |
| Date: 11/23/93 |
| IN THE UNITED STATES DISTRICT COURT |
| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA |
PRETRIAL DIVERSION OPERATIONS AGREEMENT
The United States Attorney's Office and the Probation Office shall operate the Pretrial Diversion Program in accordance with the terms adopted by the U.S. Court for the Middle District of Pennsylvania.
| /s/ | /s/ |
| David M. Barasch | Joseph P. Donohue |
| United States Attorney | Chief Probation Officer |
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PRETRIAL DIVERSION PROGRAM
Pursuant to 18 U.S.C. §3154(10), the probation office shall to the extent provided for in an agreement between the Chief Probation Officer and the U.S.. Attorney, collect, verify and prepare reports for the U.S. Attorney's Office pertaining to the pretrial diversion of any person who is or may be charged with an offense and perform such other duties as may be required under any such agreement.
II. Definition
Pretrial diversion is an alternative to prosecution which seeks to divert certain candidates from traditional criminal justice processing into a program of community supervision administered by the probation office. The Diversion Program may begin prior or subsequent to the formal filing of charges. In either case, prosecution is suspended. If charges have been filed, they are dismissed following successful completion of the program. A candidate's participation in the Diversion Program shall be voluntary.
III. Objectives
The objectives of the Pretrial Diversion Program are to prevent future criminal activity by certain candidates against whom prosecutable cases exist; to save prosecutive and judicial resources; and to provide, where appropriate, a vehicle for restitution to communities and victims of crime.
IV. Eligibility Criteria
An individual may be diverted when a prosecutable case exists and if the individual meets established criteria -- see Exhibit A.
V. Legal Representation
Candidates for pretrial diversion shall be represented by legal counsel. If an indigent individual is being considered for diversion prior to the filing of formal charges and is without counsel, the U.S. Attorney's Office shall refer the individual to the Federal Public Defender's Office or schedule an appearance before a U.S. Magistrate Judge for consideration of eligibility for the appointment of counsel.
VI. Referrals
The U.S. Attorney's Office shall be responsible for selecting persons to be considered for the Pretrial Diversion Program. If the Probation Office identifies a potential candidate, the Chief Probation Officer may request the U.S. Attorney to consider the person for the Pretrial Diversion Program.
When the U.S. Attorney's Office identifies a case for referral to the Pretrial Diversion Program, the Assistant U.S. Attorney shall notify the candidate and defense counsel by letter (Exhibit B) and shall provide them with the Application for Pretrial Diversion Program (Exhibit C). Defense counsel shall discuss the Program with the candidate and review the waiver of rights to a speedy trial and the presentment to a grand jury within the statute of limitations. If the candidate wishes to participate, defense counsel shall notify the U.S. Attorney's Office and return the completed application. The Assistant U.S. Attorney shall then forward to the Chief Probation Officer a referral letter with a copy to the supervising judicial officer (Exhibit D), an investigative report and a copy of the completed application. Within three days, the Chief Probation Officer or his designee shall acknowledge the referral and identify the probation officer assigned to conduct the investigation (Exhibit E). No pretrial diversion investigation shall be initiated until a formal request is received from the U.S. Attorney's Office.
VII. Pretrial Diversion Report
The probation office shall conduct an investigation to assess the candidate's suitability for participation in the Pretrial Diversion Program and shall prepare a written report within 30 days after receipt of the U.S. Attorney's referral letter. The report shall include, but shall not be limited to, the following, Details of Offense, Personal History, Prior Criminal Record, Assessment and Recommendation. Upon completion of the report, the probation officer shall provide a brief written summary of the case to a judge on the Probation Committee acting on behalf of the Court. If the Court does not concur with the recommendation of the probation officer, the judge shall communicate with the probation officer within five days of receipt of the written summary. If the Court interposes no objection, the probation officer shall provide the report and recommendation to the U.S. Attorney's Office and defense counsel. Defense counsel shall return the report to the probation office when the candidate is accepted or rejected for the Pretrial Diversion Program. A person's admission to the Pretrial Diversion Program shall be subject to the concurrence of the U.S. Attorney and the Chief Probation Officer.
VIII. Pretrial Diversion Agreement
When a person is approved for admission to the Pretrial Diversion Program, the Assistant U.S. Attorney shall prepare a Pretrial Diversion Agreement within seven days of receiving the report. The agreement shall contain the terms and conditions of the Pretrial Diversion Program. The length of supervision is not to exceed 18 months. Persons admitted to the Pretrial Diversion Program shall abide by the standard conditions adopted by the Court and any special conditions included in the Pretrial Diversion Agreement (Exhibit F).
The Assistant U.S. Attorney shall schedule a conference with the candidate, defense counsel and the probation officer. At the conference, the terms and conditions of the Pretrial Diversion Program shall be reviewed and the Agreement executed by the parties. Supervision commences upon execution of the Agreement. If charges have been filed, the U.S. Attorney's Office shall, after execution of the Agreement, submit to the supervising judicial officer an order dismissing the charges without prejudice (Exhibit G).
If the candidate is not admitted to the Pretrial Diversion Program, the Assistant U.S. Attorney shall so advise the probation office and defense counsel. A candidate not admitted to the Pretrial Diversion Program is subject to prosecution.
IX. Supervision
The Probation Office shall supervise the person under the Pretrial Diversion Program in accordance with the terms and conditions of the Agreement.
A) Confidentiality
The Pretrial Diversion Agreement shall not be a public document and the fact that a person is on pretrial diversion is confidential and shall not be disclosed.
B) Third Party Risk
A determination of risk shall be made in each case. Factors to consider in making this evaluation are the facts of the case, the person's conduct and prior criminal record. Consideration shall be given to the person's current employment and other circumstances which might present the person with an opportunity or temptation to engage in criminal or anti- social behavior related to the person's criminal background.
At the onset of supervision and, thereafter, if the circumstances of the divertee change, the probation officer shall review the case to determine whether a reasonably foreseeable risk to a third party exists. Reasonably foreseeable risk means that the circumstances of the relationship between the divertee and the third party (e.g., employer and employee) suggest that the person may engage in a criminal or anti-social manner similar or related to past conduct. Matters related to third party risk shall be reported to the U.S. Attorney's Office. Resolution of such issues shall be subject to the concurrence of the U.S. Attorney and Chief Probation Officer. Unresolved issues shall be referred to a judge on the Probation Committee.
C) Flash Notices
When a candidate is accepted into the Pretrial Diversion Program, the probation office shall send a "Flash Notice" (FBI Form 1-1 2--Exhibit H) to the Director of the FBI in Washington, DC. This will facilitate notification of any new arrest involving the divertee. When a divertee has successfully completed the Pretrial Diversion Program, the probation office shall send a "Final Disposition Report" (Form R-84--Exhibit 1) indicating the final disposition and date to the Director of the FBI in Washington, DC. For the period of the diversion and for three years after the successful completion of the program, the Identification Division of the FBI shall retain the pretrial diversion information and shall disseminate it to all authorized requesters. After the three year period, the fingerprint cards shall be expunged from the Identification Division's file and shall be destroyed.
D) Early Discharge
A divertee who has fulfilled the terms and conditions of the Pretrial Diversion Agreement may be granted an early discharge from the Pretrial Diversion Program. Termination prior to the expiration date shall be subject to the concurrence of the U.S. Attorney and Chief Probation Officer.
X. Violations
The probation office shall immediately notify the Assistant U.S. Attorney assigned to the case of any apparent violation of the conditions and terms of the Pretrial Diversion Agreement. The U.S. Attorney's Office and the probation office shall confer regarding alleged violations. The U.S. Attorney with the concurrence of the Chief Probation Officer may terminate a divertee from the Pretrial Diversion Program or may modify the conditions of the Pretrial Diversion Agreement. If the U.S. Attorney and Chief Probation Officer do not concur regarding violation issues, the matter shall be referred to a judge on the Probation Committee for resolution. The Assistant U.S. Attorney shall notify defense counsel and the divertee of any modification of the terms or termination of the Pretrial Diversion Agreement.
XI. Termination
Upon satisfactory completion of the Pretrial Diversion Program by the divertee, the probation office shall promptly provide written certification to the Assistant U.S. Attorney (Exhibits J-1 and J-2). Upon receipt of that notification in cases where charges have previously been filed, the Assistant U.S. Attorney shall promptly prepare an order for the supervising judicial officer dismissing the charges with prejudice (Exhibit K) and shall forward a copy of the Order of Dismissal to the divertee, defense counsel and the probation office. If no formal charges are filed, the Assistant U.S. Attorney shall communicate to the divertee, defense counsel and the probation office that no charges shall be filed. The probation office shall file an FBI Disposition Form R-84, so that the record indicates successful completion.
ELIGIBILITY CRITERIA
The U.S. Attorney may divert any individual against whom a prosecutable case exists and who is not:
1. Accused of an offense which, under existing Department guidelines, should be diverted to the state for prosecution;
2. A person with two or more prior felony convictions;
3. An addict;
4. A public official or former public official accused of an offense arising out
of an alleged violation of a public trust; or
5. Accused of an offense related to national security of foreign affairs.
Cases which meet the above criteria but are violations of the statutes listed below require prior approval of the Criminal Division of the U.S. Department of Justice.
STATUTES
Narcotics and Dangerous Drugs Section
21 U.S.C. §§848, 849
Organized Crime and Racketeerinq Section
| 12 U.S.C. §25a | 18 U.S.C. §1301 | 18 U.S.C. §1953 |
| 12 U.S.C. §339 | 18 U.S.C. §§1302 to 1306 | 18 U.S.C. §1955 |
| 12 U.S.C. §1730c | 18 U.S..C. §1511 | 18 U.S.C. §§1961 to 1968 |
| 12 U.S.C. §1829a | 18 U.S.C. §§1801 to 1804 | 26 U.S.C. §§4401 to 4405 |
| 15 U.S.C. §§1171 to 1178 | 18 U.S.C. §1952 | |
| 18 U.S.C. §224 | ||
| 18 U.S.C. §§891 to 894 |
Exhibit A
| 15 U.S.C. §1281 (where labor matter involved) | ||
| 18 U.S.C. §664 | ||
| 18 U.S.C. §844(i) (where labor matter involved) | ||
| 18 U.S.C. §1027 | 29 U.S.C. §308 | 29 U.S.C. §1111 |
| 18 U.S.C. §1231 | 29 U.S.C. §439 | 29 U.S.C. §1131 |
| 18 U.S.C. §1951 | 29 U.S.C. §463 | 29 U.S.C. §1141 |
| 18 U.S.C. §1954 | 29 U.S.C. §501(c) | 45 U.S.C. §152 |
| 29 U.S.C. §162 | 29 U.S.C. §§502 to 504 | 45 U.S.C. §152 |
| 29 U.S.C. §186 | 29 U.S.C. §522 | 45 U.S.C. §§181, 182 |
| 29 U.S.C. §§215, 216 | 29 U.S.C. §530 |
General Litigation and Local Advice Section
| 18 U.S.C. §112 | 18 U.S.C. §1201(d) | |
| 18 U.S.C. §878 | 18 U.S.C. §§1501 to 1510 | |
| 18 U.S.C. §970 | 18 U.S.C. §§1621 to 1623 | |
| 18 U.S.C. §1116 | 18 U.S.C. §§2511, 2512 | |
| 18 U.S.C. §1201(a)(4) |
| Fraud Section | TAX DIVISION | |
| 2 U.S.C. §§431 to 453 | 18 U.S.C. §1913 | All Statutes |
| 2 U.S.C. §§261 to 270 | 42 U.S.C. §1973(i)(c) | |
| 18 U.S.C. §§241, 242 | CIVIL RIGHTS DIVISION | |
| 18 U.S.C. §§591 to 612 | All Statutes |
Re: In the matter of:
Complaint No.
Dear
The United States Attorney for the Middle District of Pennsylvania has information that you have committed an offense against the United States in violation of Title United States Code, Section(s) . Description:
After reviewing your case, we have made a preliminary determination that you may be an appropriate person to participate in the Pretrial Diversion Program. Pretrial diversion means that this office will not presently seek a conviction against you. Instead, if you qualify and are accepted, you will be placed in a pretrial diversion program under certain specified conditions described in a written agreement between you and the government for a term not to exceed eighteen months. If you satisfactorily fulfill the conditions and terms of the program, you shall not be prosecuted, or, if you have already been charged, the charges against you shall be dismissed. If you violate the conditions of the written agreement, you may be removed from the pretrial diversion program, in which case this office will resume prosecution.
Decision to seek acceptance into this program is one that must ultimately be made by you alone. Nevertheless, it is important that you immediately discuss this matter fully and completely with your attorney inasmuch as your participation in this program will constitute a waiver of certain rights afforded to you by the Constitution. Specifically, you must waive your right to a speedy trial and your right to have an indictment presented to a grand jury within the applicable statute of limitations. If you believe you are unable to afford an attorney, you may apply to the Federal Public Defender's Office to have counsel appointed to represent you.
If you desire to be further considered for the pretrial diversion program, please let us know at your earliest convenience.
Any information furnished in connection with your application for pretrial diversion will be confidential and will not be admissible on the issue of guilt in subsequent criminal proceedings.
In order to ensure that appropriate procedures can be initiated as soon as possible, please respond promptly.
| Very truly yours, | |
| _______________________________________ | |
| United States Attorney |
| _______________________________________ | |
| Assistant United States Attorney |
Exhibit B
APPLICATION FOR PRE-TRIAL DIVERSION PROGRAM
All answers must be complete Use X marks where appropriate
1. Name Phone No.
Address
(Street) (City) (State) (zip)
Length of Residence at Present Address
2. Age 3. DOB 4. Place of Birth
5. Sex F M 6. Social Security No.
7. Marital Status Never Married Married Widow/Widower
Separated Divorced
8. No. of Dependents 0 1 2 3 4 5 6 and over
9. Present Living Arrangements Alone w/Parent(s) w/Spouse
w/Relatives w/Friend(s)
10. Education Less than 8th grade Less than 12th grade
High School Graduate Other
12. Military Service Yes No; Branch
Type of Discharge Date
13. Nearest Contact (Person who would usually know your whereabouts)
Name Phone ( )
Address
Relationship to Defendant
14. Defense Attorney:
Name Phone ( )
Address
15. Present Employer _______________________________________ Phone ( )
Address
Date Employed Occupation Salary
16. Employment History (Begin with last previous place of employment)*
Name of Employer Phone No. ( )
Address
Dates Employed: From to Occupation
Reason Left
Name of Employer Phone No. ( )
Address
Dates Employed: From to Occupation
Reason Left
Name of Employer Phone No. ( )
Address
Dates Employed: From to Occupation
Reason Left
Name of Employer Phone No. ( )
Address
Dates Employed: From to Occupation
Reason Left
List employment for the past six years. If you need additional space, use blank sheet of paper.
17. Source of Income Employment (self) Employment (spouse)
Unemployment Compensation (Amount $ )
Public Assistance (Amount $ )
Parents Relatives Friends Other
18. Prior Offense Record None Juvenile Adult
I hereby apply for status as a participant in the pretrial diversion program. I authorize the probation office to conduct an investigation to determine my suitability for this program.
A false answer to any question in this application may be grounds for recommendation against placement into this program or removal after placement in the program, in which case, the U.S. Attorney may resume prosecution on the original charge.
| Applicant | |
| Date | |
| Attorney for Applicant | |
Exhibit C
MEMORANDUM
Chief Probation Officer
FROM:
Assistant U.S. Attorney
SUBJECT:
PTD Referral
I am recommending pretrial diversion for who has been
reported to have violated Title ________________,United States Code, Section ___________________.
I have enclosed the investigative report and Application for Pretrial Diversion. Upon completion of the investigation, please submit a report and recommendation to the U.S. Attorney's Office.
Exhibit D
Date
MEMORANDUM
Assistant U.S. Attorney
FROM: Joseph P. Donohue
Chief Probation Officer
SUBJECT: John Doe
PTD Referral
This will acknowledge receipt of your correspondence.
Our office will conduct a Pretrial Diversion Investigation. The case has been assigned to Probation Officer
.
Exhibit E
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
AGREEMENT FOR PRETRIAL DIVERSION
It appearing that you are reported to have committed an offense against the United States on or about in violation of Title United States Code, Section(s) in that you did: .
Upon accepting responsibility for your behavior and by your signature on this Agreement, it appearing, after an investigation of the offense, and your background, that the interest of the United States, your own interest and the interest of justice will be served by the following procedure; therefore
On the authority of the Attorney General of the United States, by the United States Attorney for the Middle District of Pennsylvania, prosecution in this District for this offense shall be deferred for the period of months from this date, provided you abide by the following conditions and requirements of this Agreement set out below.
Should you violate any condition of this Agreement, the United States Attorney, with the concurrence of the Chief Probation Officer, may terminate you from the Pretrial Diversion Program or may modify the conditions of the Pretrial Diversion Agreement. In no event shall the term of supervision exceed eighteen months. The United States Attorney may release you from supervision at any time. The United States Attorney may at any time within the period of your supervision, initiate prosecution for this offense should you violate any condition of this Agreement. In this case he/she will furnish you with notice specifying the condition of the Agreement which you have violated.
After successfully completing your diversion program and fulfilling all the terms and conditions of the Agreement, no prosecution for the offense set forth in this Agreement will be instituted in this District, and the charges against you, if any, will be dismissed.
Neither this Agreement nor any other document filed with the United States Attorney as a result of your participation in the Pretrial Diversion Program shall be used against you in connection with any prosecution for the above-described offense.
General Conditions of Pretrial Diversion
(1) You shall not commit a federal, state, or local crime during the term of supervision;
(2) You shall not leave the judicial district or other specified geographic area without the permission of the probation officer;
(3) You shall report to the probation officer, and shall submit a truthful and complete written report within the first five days of each month;
(4) You shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
(5) You shall support your dependents and meet other family responsibilities;
(6) You shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons;
(7) You shall notify the probation officer within seventy-two hours of any change in residence or employment;
(8) You shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician;
(9) You shall not frequent places where controlled substances are illegally sold, used, distributed, or administered, or other places specified by the Probation Officer;
(10) You shall not associate with any persons involved in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
(11) You shall permit a probation officer to visit you at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;
(12) You shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
(13) You shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the concurrence of the United States Attorney and Chief Probation Officer;
(14) As directed by the probation officer, you shall notify third parties of risks that may be occasioned by the nature of your offense or personal history or characteristics, and shall permit the probation officer to make such notification requirement;
(15) You shall refrain from possessing a firearm, destructive device, or other dangerous weapon;
(16) You shall participate in a program of testing and treatment for drug abuse, as directed by the Probation Officer, until such time as you are released from the program by the Probation Officer.
Special Conditions
(May include, but are not limited to, performance of community service, payment of restitution, participation in mental health treatment and surrender of driver's license)
I understand that if I violate the conditions of supervision, I may be removed from the pretrial diversion program and prosecuted by the United States Attorney.
I assert and certify that I am aware of the fact that the Sixth Amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. I also am aware that Rule 48(b) of the Federal Rules of Criminal Procedure provides that the Court may dismiss an indictment, information, or complaint for unnecessary delay in presenting a charge to the Grand Jury, filing an information or in bringing a defendant to trial. I hereby request the United States Attorney for the Middle District of Pennsylvania to defer such prosecution. I agree and consent that any delay from the date of this Agreement to the date of initiation of prosecution, as provided for in the terms expressed herein, shall be deemed to be a necessary delay at my request, and I waive any defense to such prosecution on the ground that such delay operated to deny my rights under Rule 48(b) of the Federal Rules of Criminal Procedure and the Sixth Amendment to the Constitution of the United States to a speedy trial or to bar the prosecution by reason of the running of the statute of limitations for a period of months equal to the period of this agreement.
These conditions have been read to me. I fully understand the conditions, and have been provided a copy of them.
| ___________________________________ | |
| Divertee | |
| ___________________________________ | |
| Defense Counsel | |
| ___________________________________ | |
| Assistant U.S. Attorney | |
| ___________________________________ | ____________________ |
| Probation Officer | Date |
Exhibit F
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
v. Criminal No._______________________
ORDER FOR DISMISSAL
Pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure and by leave of Court endorsed hereon the United States Attorney for the Middle District of Pennsylvania hereby dismisses against . This dismissal is without prejudice.
| ________________________________________ | |
| United States Attorney |
Leave of Court is granted for the filing of the foregoing dismissal.
| ________________________________________ | |
| UNITED STATES DISTRICT JUDGE |
Exhibit G
Exhibits H and I are unavailable
(No Charges Filed)
CERTIFICATION OF COMPLETION OF
PRETRIAL DIVERSION PROGRAM
| Attn:____________________________________ | |
| Assistant U.S. Attorney | |
| Re:_____________________________________ | |
Dear
I hereby certify that the subject has complied with the conditions and terms set forth in the Pretrial Diversion Agreement.
Sincerely,
U.S. Probation Officer
cc: Defense Counsel
Exhibit J-1
(Charges Filed)
CERTIFICATION OF COMPLETION OF
PRETRIAL DIVERSION PROGRAM
| Attn:____________________________________ | |
| Assistant U.S. Attorney | |
| Re:_____________________________________ | |
Dear
I hereby certify that the subject has complied with the conditions and terms set forth in the Pretrial Diversion Agreement.
Please furnish a copy of the Order of Dismissal with Prejudice.
Sincerely,
U.S. Probation Officer
cc: Defense Counsel
Exhibit J-2
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
V. Criminal No.___________________
ORDER FOR DISMISSAL
Pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure and by leave of court endorsed hereon the United States Attorney for the Middle District of Pennsylvania hereby dismisses the ____________ against_________________________ for the reason that the defendant is in the Pretrial Diversion Program. This dismissal is with prejudice.
| ________________________________________ | |
| United States Attorney |
Leave of Court is granted for the filing of the foregoing dismissal.
| ________________________________________ | |
| UNITED STATES DISTRICT JUDGE |
Exhibit K