- 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]