Best Federal Defense Lawyer Michael Leonard Explains DOJ’s Pre-Trial Diversion program. Apart from obtaining a dismissal of a federal criminal case; or obtaining a reduction of a federal charge to a federal misdemeanor; or, of course winning a case after a federal criminal jury (or bench) trial – the resolution of a federal criminal case through what is know as “Pre-Trial Diversion” is an outstanding outcome for the defendant-client. Unfortunately, the resolution of federal criminal cases in this manner is certainly the exception. However, there certainly are circumstances in which a federal criminal defense lawyer can successfully “pitch” a case to federal prosecutors with an agreement to pre-trial diversion being the outcome. What this means is that the charge(s) are dismissed, provided however that the defendant fully comply with what are usually stringent conditions for a period of time, usually ranging from six months to a year. Common conditions include not committing any other type of offense, etc.
The Department of Justice has a written Policy/Program with respect to the use of a Pre-Trial Diversion to resolve a case without trial. That is briefly explained below, and it can be found in the DOJ’s Manual at Section 9-22.000. The Manual notes that Pre-Trial Diversion (“PTD”) provides “prosecutors with another tool . . . to ensure accountability for criminal conduct, protect the public by reducing rates of recidivism, conserve prosecutive and judicial resources, and provide opportunities for treatment, rehabilitation, and community correction.” The Manual further notes that PTD varies by judicial District/United States Attorneys’ Offices. That is a point to be taken for a defense lawyer as not all view or make use of PTD the same way, i.e., some make little use of it.
The Manual points out that defendants “who successfully complete a PTD program may qualify for a range of case outcomes, including the declination of charges, dismissal or reduction of charges, or a more favorable recommendation at sentencing.” On the other hand, the Manual notes that defendants who do not successfully complete PTD “may be charged or, for participants who have already been charged, may be returned to or remain in the traditional criminal justice process.”
The Manual delineates the “major objectives” of PTD, which include:
- To prevent future criminal activity and promote rehabilitation among certain offenders by diverting them from traditional processing into community supervision and services, including, as appropriate, mental health and substance abuse treatment.
- To conserve prosecutive and judicial resources.
- To provide, where appropriate, a vehicle for restitution to affected communities and victims of crime.
As a practice point for federal lawyers, one can make use of these objectives for purposes of attempting to pitch PTD in a given case.
The Manual has an additional Section of its PTD policy which outlines “selection criteria” that U.S. Attorneys’ Offices should consider in determining whether to utilize PTD in a given case for a given defendant.
- Accused of an offense related to child exploitation or child pornography, or an offense involving sexual abuse or sexual assault;
- Accused of an offense resulting in serious bodily injury or death;
- Accused of an offense involving brandishing or use of a firearm or other deadly weapon;
- A public official or former public official accused of an offense arising out of an alleged violation of a public trust;
- Accused of an offense related to national security, including terrorism offenses, or foreign affairs; or
- Accused of an offense in connection with which the individual held a significant managerial role in a large-scale criminal organization or in a violent gang.
Indeed the Manual indicates that if a defendant falls within one of above categories, “absent approval from the U.S. Attorney and consultation with the victim(s) of an offense,” PTD shall not be utilized. Similarly, the Manual indicates that PTD should not be used if the defendant poses “a danger to the community.”
In short, PTD would be a great means to resolve a much higher number of case. Sadly, to-date, it is clearly not being used as often and as effectively as it could be. Nonetheless, federal criminal defense counsel should push for its use when the defendant he/she is representing present the opportunity for PTD consistent with the DOJ’s Manual.
Michael Leonard
Leonard Trial Lawyers
December 10, 2023
