federal pretrial diversion...

Pretrial Diversion Procedures Manual

(Guide to Judiciary Policy, Vol. 8, Parts A and C)

Office of Probation and Pretrial ServicesAdministrative Office of the United States Courts

June 21, 2012

Courtesy of Federal Pretrial Diversion Attorney 813-222-2220


Pretrial Diversion Procedures Manual June 21, 2012(Guide, Vol. 8, Parts A and C)

Table of Contents

Chapter 1: Overview§ PR 1.10 Purpose§ PR 1.20 Application§ PR 1.30 Scope§ PR 1.40 Defendants and Offenders Subject to the Procedures

Chapter 2: Pretrial Diversion Interview and Investigation§ PR 2.10 Interview and Investigation§ PR 2.20 Offense§ PR 2.30 Personal Information

§ PR 2.30.10 Family§ PR 2.30.20 Residential History§ PR 2.30.30 Education§ PR 2.30.40 Employment§ PR 2.30.50 Financial Assets and Liabilities§ PR 2.30.60 Military History§ PR 2.30.70 Physical Health§ PR 2.30.80 Mental Health§ PR 2.30.90 Substance Abuse

§ PR 2.40 Community Visits§ PR 2.50 Verifications

Chapter 3: Pretrial Diversion Report§ PR 3.10 Report Objectives§ PR 3.20 Report Format§ PR 3.30 Offense§ PR 3.40 Personal History§ PR 3.50 Prior Criminal Record§ PR 3.60 Third-Party Risk§ PR 3.70 Assessment§ PR 3.80 Recommendation

Chapter 4: Pretrial Diversion Agreement§ PR 4.10 Diversion Agreement§ PR 4.20 Recommending or Modifying Special Conditions§ PR 4.30 Recommending Diversion Term Length

Chapter 5: Pretrial Diversion Supervision§ PR 5.10 Supervising the Pretrial Divertee§ PR 5.20 Divertee Criminal Record

§ PR 5.20.10 FBI Responsibility to Provide Criminal Record§ PR 5.20.20 Fingerprints




§ PR 5.20.30 DNA Collection§ PR 5.20.40 Flash Notices

§ PR 5.30 Support Services § PR 5.40 Restitution§ PR 5.50 Community Service§ PR 5.60 Third-Party Risk§ PR 5.70 Transfer of Supervision§ PR 5.80 Modifying the Diversion Agreement

Chapter 6: Violations§ PR 6.10 Types of Violations§ PR 6.20 Response to Violations

Chapter 7: Termination§ PR 7.10 Termination at Expiration Date§ PR 7.20 Early Termination § PR 7.30 Case Closing




Chapter 1: Overview

PR 1.10 PurposePR 1.20 ApplicationPR 1.30 ScopePR 1.40 Defendants and Offenders Subject to the Procedures_____________________________________________________________________

PR 1.10 Purpose

This manual is designed to provide United States pretrial services and probationofficers with additional guidance in investigating, writing reports about, and supervisingpersons placed in a pretrial diversion program. It supplements the policy contained inGuide to Judiciary Policy, Volume 8, Part A, Chapter 8 (Pretrial Diversion Investigation)and Part C, Chapter 8 (Pretrial Diversion Supervision).

PR 1.20 Application

The procedures manual applies to employees of the United States probation andpretrial services system in the performance of their duties. The philosophy, goals,principles, and desired outcomes set forth in this manual specifically apply to workingwith persons placed in a diversion program. The manual is designed to complementthe policy guidance contained in the Guide to Judiciary Policy, Volume 8, Part A(Pretrial Services Investigation and Report) and Part C (Supervision of FederalDefendants). The following parts of the Guide, Volume 8, may apply as well:

• Part B (Alternatives to Detention and Conditions of Release);

• Part D (Presentence Investigation Report);

• Part E (Supervision of Federal Offenders);

• Part F (Federal Location Monitoring Program);

• Part G (Criminal Monetary Penalties);

• Part H (Safety and Firearms); and

• Part I (Sex Offender Management).

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http://jnet.ao.dcn/Guide/Vol_8_Probation_and_Pretrial_Services/Part_B_Alternatives_to_Detention.html

http://jnet.ao.dcn/Guide/Vol_8_Probation_and_Pretrial_Services/Part_D_Presentence_Investigation_Report.html

http://jnet.ao.dcn/Guide/Vol_8_Probation_and_Pretrial_Services/Part_E_Supervision_of_Federal_Offenders.html

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PR 1.30 Scope

The chapters in this manual are:

• Overview (Ch. 1)

• Pretrial Diversion Interview and Investigation (Ch. 2)

• Pretrial Diversion Report (Ch. 3)

• Pretrial Diversion Agreement (Ch. 4)

• Pretrial Diversion Supervision (Ch. 5)

• Violations (Ch. 6)

• Termination (Ch. 7)

PR 1.40 Defendants and Offenders Subject to the Procedures

Subject to this policy is any person identified, prior to or subsequent to the formal filingof charges, by the United States Attorney’s Office or pretrial services or probation officeas a candidate for diversion and who meets the eligibility criteria identified in the UnitedStates Attorneys’ Manual, Title 9, Criminal Division, Chapter 22, Pretrial DiversionProgram. The person identified as a candidate for diversion may seek advice ofdefense counsel and must sign a pretrial diversion agreement.

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Chapter 2: Pretrial Diversion Interview and Investigation

PR 2.10 Interview and InvestigationPR 2.20 OffensePR 2.30 Personal Information

PR 2.30.10 FamilyPR 2.30.20 Residential HistoryPR 2.30.30 EducationPR 2.30.40 EmploymentPR 2.30.50 Financial Assets and LiabilitiesPR 2.30.60 Military HistoryPR 2.30.70 Physical HealthPR 2.30.80 Mental HealthPR 2.30.90 Substance Abuse

PR 2.40 Community VisitsPR 2.50 Verifications___________________________________________________________________

PR 2.10 Interview and Investigation

The purpose of the diversion interview is to assess the appropriateness of pretrialdiversion and determine the diversion candidates’s risks and service needs. Toprepare for the interview, the officer:

• should contact the candidate to schedule the interview;

• may coordinate the interview with the candidate’s attorney; and

• should instruct the candidate to bring in documents to verify identification,occupation, housing, financial status, and other background information.

Before conducting the interview, the officer should take the following actions to brief thecandidate about the diversion program and obtain informed consent to conduct theinvestigation:

• Explain the program thoroughly to the candidate, addressing topicsincluding the following: the program’s voluntary nature, confidentiality,right to counsel, acknowledging responsibility without admitting guilt,supervision expectations, potential program outcomes, criminal records,fingerprinting, and expungement.

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• Review Form PS-26 (Candidate’s Approval to Institute a Pretrial DiversionInvestigation) with the candidate and have the candidate sign it.

• Obtain from the candidate a signed Form PS-6 (Authorization to ReleaseInformation to Pretrial Services Officer). The officer may need additionalsigned release forms upon completion of the investigation such as FormPS-6B (Authorization to Release Confidential Information - Drug orAlcohol Abuse Programs) or Form PS-6D (Authorization to ReleaseConfidential Information - Mental Health Treatment Programs).

• Use Form PS-2A (Worksheet for Pretrial Diversion Report) whenconducting the pretrial diversion interview. If the candidate was previouslyinterviewed as a result of a charging document and granted pretrialrelease, the officer should ensure that the information that was previouslydocumented on Form PS-2 (Worksheet for Pretrial Services Report) isaccurate and current.

Because there generally is more time available at the pretrial diversion interview andinvestigation stage, the district’s time frame should allow adequate time for a thoroughand comprehensive assessment. The officer should expand the initial interviewquestions in the categories discussed below while remaining conscious of theprescribed time frames established in the district’s operations agreement.

PR 2.20 Offense

The officer should give the candidate an opportunity to explain the conduct that led tothe pretrial diversion referral and ask questions as needed to ensure that the candidateacknowledges responsibility for his or her behavior, but the officer should not ask thecandidate to admit guilt.

PR 2.30 Personal Information

Although the investigation is not meant to be an overly exhaustive study of thecandidate’s background, in conducting the investigation, the officer should:

• cover relevant and recent information about the candidate’s background(such as the candidate’s name(s) and aliases ever used, date of birth,social security number, sex, and race) to assess and establishappropriateness for the diversion program;

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• make recommendations for special conditions and service needs; and

• make sure that the candidate expresses a willingness to participate in the diversion program.

PR 2.30.10 Family

The officer should discuss the candidate’s family, including:

• the candidate’s family relationships while growing up and throughoutadulthood, including marriages and children if applicable;

• whether there is a history of any kind of abuse (i.e., drugs, alcohol, sexual,or mental) or violence in the family;

• how frequently the candidate has contact with what family members;

• who of the candidate’s family members is the candidate’s primary supportsystem (emotional or financially); and

• how the alleged offense has affected family relationships.

The officer should verify the candidate’s information through a collateral source such asa family member or close friend, or both, who has knowledge of the candidate’s history.

PR 2.30.20 Residential History

The officer should use the candidate interview, public records, the Internet, and otherdatabases to gather information about the candidate’s current and past residences,regardless of ownership or contribution status. The officer also should discuss, andverify through a collateral source or home contact, the candidate’s current or futureresidential plans.

PR 2.30.30 Education

The officer should discuss and verify through collateral sources or available documentsthe candidate’s educational and training background. The officer should assess thelevel of education the candidate attained and any vocational or trade skills thecandidate possesses. The officer then should assess whether and what type of

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educational or vocational referrals the candidate needs.

PR 2.30.40 Employment

The officer should obtain details about the candidate’s work history spanning theprevious 10 years. The officer may ask the candidate for a résumé to help establishemployment history or gather pay stubs and tax records to help verify previousemployment. If documents relating to past employment are not available, the officershould contact collateral sources or former employers to verify past employment. Afterinvestigating and verifying past employment, the officer should ascertain whetheremployment program referrals are appropriate.

If the candidate’s current employment would be jeopardized by an employer’sknowledge of the candidate’s participation in the diversion program, the officer shoulduse pay stubs or other means of verification.

The officer also should conduct employment contacts if such contacts will notjeopardize the candidate’s continued employment.

PR 2.30.50 Financial Assets and Liabilities

To investigate the candidate’s financial assets and liabilities, the officer should:

• ask the candidate to complete net worth and cash flow statements. See: Form PROB-48 (Net Worth Statement) and Form PROB-48B (MonthlyCash Flow Statement);

• gather assets information regarding income from sources other thanemployment, such as disability payments, trust accounts, child support orpublic assistance funds, any type of bank account, money owed to thecandidate, expected financial windfalls, life insurance policies, storagefacilities and their contents, special collections, motor vehicles titled to thecandidate, and real estate or business holdings;

• examine the candidate’s financial liabilities, which may include charge orcredit card accounts, mortgage loans, auto loans, other (contract) loans,delinquent taxes, and child support obligations; and

• investigate bankruptcy and civil proceedings if the proceedings will havean impact on restitution or fine payment.

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The officer may obtain additional information through public records databases, theInternet, and tax forms and should verify the information through a collateral source if itis not verified through documentation. The officer also should advise the candidate thatthe officer periodically will investigate the candidate’s financial assets and liabilities tokeep informed of compliance with any diversion condition, including payment of anymonetary obligations imposed by the court.

PR 2.30.60 Military History

If the candidate has any past or present military history, the officer should discuss themilitary branch, position and rank, dates of service, special awards, and type ofdischarge. The officer may use collateral sources and documentation from thecandidate to verify military history. If further investigation is warranted, the officershould execute Form PROB-14B (Request for Military Service Data).

PR 2.30.70 Physical Health

The officer should determine whether the candidate currently suffers or suffered in thepast from any physical health ailments, whether he or she suffers from anycommunicable diseases, whether he or she has been hospitalized, and whether he orshe receives government or private benefits due to a physical disability or illness. Theofficer may verify this information through observing the candidate, through collateralsources such as close family members, and by requesting medical records fromfacilities that currently treat or previously treated the candidate. The officer shouldexecute Form PS-6 (Authorization to Release Information to Pretrial Services Officer)and also may execute Form PROB-14C (Request for Medical History Data).

PR 2.30.80 Mental Health

To investigate the candidate’s mental health, the officer should:

• determine whether the candidate has a significant history of mental healthissues that could preclude participation in pretrial diversion;

• determine whether the candidate needs treatment;

• inquire about past or current psychiatric care, past or current prescriptionsfor psychotropic or similar medication, and prior hospitalizations; if the

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candidate reports a history of mental health diagnosis, the officer shouldverify the information through collateral sources, a request for medicalrecords from each facility or practitioner from which the candidatereceived treatment, and through prescription drug records. (Note: If thecandidate reports a history of mental health treatment, the officer shouldexecute Form PS-6D (Authorization to Release Confidential Information -Mental Health Treatment Programs for each facility and practitioner);

• determine whether the candidate receives government or private benefitsdue to a mental health condition; and

• note any suicidal or homicidal ideation or past suicide attempts.

PR 2.30.90 Substance Abuse

To investigate substance abuse, the officer should:

• discuss past or current drug and alcohol use or abuse, emphasizing thelast 12 months;

• discuss any history of substance abuse treatment to determine whethersubstance abuse may preclude the candidate’s participation in pretrialdiversion and whether treatment referrals are appropriate;

• find out whether substance abuse has caused disruption at work or athome or if the candidate abuses substances at inappropriate times suchas while driving a car or caring for children;

• examine if the candidate knows what triggers his or her substance abuse;and

• inquire whether the substance abuse has affected the candidate’s familyand what impact it has had on marriage, children, and employment.

The officer should contact collateral sources to verify the candidate’s reportedsubstance abuse and treatment history. If the candidate reports a history of substanceabuse treatment, the officer should execute Form PS-6B (Authorization to ReleaseConfidential Information - Drug or Alcohol Abuse Programs).

PR 2.40 Community Visits

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The officer should conduct a purposeful home visit to the candidate’s residence toenhance the investigation, verify residence, speak with family members, and collect anynecessary documentation. The need for ongoing home contacts, their frequency, andthe specific activities the officer will undertake depend on the candidate’s assessed risk,individual circumstances, and the purpose the contact is to serve.

PR 2.50 Verifications

The officer should make a diligent attempt to verify all information obtained in theinterview either by mailing requests for information with signed releases to theappropriate parties, contacting the parties by phone, or using various automatedinquiries.

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Chapter 3: Pretrial Diversion Report

PR 3.10 Report ObjectivesPR 3.20 Report FormatPR 3.30 OffensePR 3.40 Personal HistoryPR 3.50 Prior Criminal RecordPR 3.60 Third-Party RiskPR 3.70 AssessmentPR 3.80 Recommendation________________________________________________________________

PR 3.10 Report Objectives

The objectives of the pretrial diversion report are to provide an official record of theinvestigation, outline a logical foundation for the officer’s assessment of the candidate,and justify the officer’s recommendation. The report is not meant to be ascomprehensive as a presentence investigation and report.

PR 3.20 Report Format

The officer should prepare the pretrial diversion report as a letter or memorandumaddressed to the United States attorney’s office and organize it in a format thataddresses at least these five major sections titled “Offense,” “Candidate’s PersonalHistory,” “ Prior Criminal Record,” “Assessment,” and “Recommendation.” Each sectionis described in detail below.

PR 3.30 Offense

The officer should begin the diversion report with a complete but concise summary ofthe alleged offense from information provided by the United States attorney’s office andany collateral sources. The officer may use such documents as the affidavit ofcomplaint, arrest records from law enforcement officials, and information gatheredthroughout the officer’s investigation of the candidate. If the candidate wasrecommended for diversion post-charge, the officer should include pertinent hearingdata (i.e., from the initial appearance and detention hearing).

The officer should include the candidate’s statement regarding acknowledgment ofresponsibility but should not include an admission of guilt.

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The officer also may include a victim impact statement to assess the impact of theoffense on any victim. The statement should identify any physical, emotional, orfinancial loss that the victim incurred. When contacting the victim, the officer should betactful, professional, and impartial, all the while keeping in mind the confidential natureof pretrial diversion. The officer may need to gather documentation from the victimregarding restitution if the United States attorney’s office has not provided thatinformation.

PR 3.40 Personal History

The officer should examine and outline the individuals, locations, and events that havehad a significant impact on the candidate’s life. These may include, but are not limitedto, the following:

• family relationships, such as relationships with parents and siblings;

• marital history;

• children and dependents;

• residential history, such as where, when, why, and for how long thecandidate lived in a particular place, which may help establish ties to thecommunity and reveal financial assets and liabilities;

• education and employment history, including whether the candidate needseducational or vocational training and whether the diversion program willlimit the candidate’s ability to earn income;

• financial assets and liabilities, which may help determine the candidate’sability to pay restitution or fines;

• military history, especially any unfavorable events such as reduced rank,dishonorable discharge, or court martial;

• immigration status if the officer has reason to believe that the candidate’simmigration status is questionable (Note: The officer may gatherinformation regarding immigration from the United States attorney’s office, the local Immigration and Customs Enforcement office, and databasessuch as ATLAS.);

• past and current health status, including any impairments that may

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preclude the candidate from successfully completing the diversionprogram or prohibit employment or the ability to pay restitution or fines;and

• mental health diagnoses and substance abuse history, especially as theyrelate to the candidate’s potential success in the diversion program; theofficer also should address the candidate’s willingness to undergo evaluation and treatment for mental health disorders or substance abuseif the court orders.

If the officer finds sufficient evidence that any personal problem (i.e, substance abuse)or family problem (i.e, domestic violence) directly contributed to the candidate’sinvolvement in the alleged offense, the officer should note that information in the report.

PR 3.50 Prior Criminal Record

To prepare the “Prior Criminal Record” section of the report, the officer should:

• obtain the candidate’s prior criminal record, if any, from a check of federal,state, local, and correctional records and document it in the report;

• research and document any available information about the candidate’scurrent or past adjustment to community supervision by contactingcollateral sources such as state or county probation or parole officers;

• research and document if the candidate has any pending charges oroutstanding warrants, has been in any diversion program, is under bondconditions (financial or nonfinancial), or has been placed on pretrialsupervision;

• include any additional relevant information, such as information about tiesto street gangs, history of violence, history of weapons possession, orrequirements of sexual offender registries that may preclude placement inthe diversion program.

The agency in charge of the federal investigation, local law enforcement, jail databases,and contact with family members also may offer the officer insight into the candidate’sprior criminal record.

The prior criminal record section follows the same format as the bail report. See:Guide, Vol 8A, § 435 (Criminal History).

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PR 3.60 Third-Party Risk

The officer should include in the report any information on potential risk to anyindividual or to the community, including any concern about a potential risk to a currentor prospective employer.

The officer should evaluate the status of the victim, if any, in the federal case. Theofficer should know whether the victim is a person, an entity, or a business. Inidentifying any third-party risk, the officer should investigate any ties that the candidatehas to the victim, such as familial, educational, business, or employment.

The officer should advise the candidate that he or she may be prohibited fromcontacting a specific victim or business or prohibited from obtaining employment orconducting business in a field in which the candidate has been educated or trained(e.g., tax preparation).

PR 3.70 Assessment

Based on information gathered during the investigation and contained in the diversionreport, the officer should provide in the assessment a logical examination of thecandidate’s strengths and weaknesses that may affect the candidate’s ability tocomplete the diversion program. Considering the following (non-exhaustive) list ofeligibility criteria may help in the assessment:

• Did the candidate show cooperation and candor during the investigationprocess, such as being truthful and forthcoming in providing necessaryinformation and documentation?

• Does the candidate acknowledge responsibility for the offense conduct?

• Is the candidate willing and able to pay restitution or participate in acommunity service program under the auspices of the pretrial services orprobation office if the United States attorney requires it?

• What is the candidate’s prior criminal history? Consider the prior criminalhistory and the United States attorney’s eligibility criteria, such asexclusion from the program if the candidate has too many felonyconvictions. Also consider district-specific eligibility criteria agreed upon inthe Operations Agreement or by the pretrial services or probation officeand the local United States attorney’s office.

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• What was the candidate’s adjustment under prior court supervision orparole?

• What is the likelihood that the candidate will be successful in the diversionprogram? Consider whether recidivism is likely.

• If the candidate has a substance abuse problem, could it be managedthrough treatment to increase the likelihood of the candidate’s successfuladjustment to supervision or would it preclude successful participation inthe pretrial diversion program?

• If the candidate has a mental health problem, could it be managedthrough outpatient/inpatient mental health treatment to increase thelikelihood of the candidate’s successful adjustment to supervision orwould it preclude successful participation in the pretrial diversionprogram?

• Does the candidate have a history of violent behavior toward familymembers or others?

• What are the nature and circumstances of the alleged offense?

Strengths may include strong ties to the community, supportive familial relationships, astrong employment background, the ability to continue working in the current job, theability to satisfy any court requirements such as restitution, and the lack of a priorcriminal record (which may offer insight into the likelihood of future criminal behaviorand compliance with court-ordered conditions).

Weaknesses may include lack of ties to the community, poor familial relationships, lackof current employment or of a continuous employment history, and a prior criminalhistory (which, as with strengths, may offer insight into the likelihood of future criminalbehavior and compliance with court-ordered conditions).

Although the assessment should not restate the body of the report, the officer shouldinclude the candidate’s stated interest in pretrial diversion and identify the candidate’slikelihood of success.

PR 3.80 Recommendation

The report should conclude with the officer’s recommendation for or against the

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candidate’s acceptance into the diversion program. If the officer recommendsacceptance, the officer should suggest an appropriate length of diversion not to exceed18 months.

The officer also should identify any special conditions that will enhance the candidate’slikelihood of success in the program. These conditions should relate directly to anyspecific or potential third-party risks and address any criminogenic and service needs. Recommendations for special conditions may include, but are not limited to, substanceabuse treatment, mental health treatment, maintaining employment, payment of restitution, or completion of community service. When recommending specialconditions, the officer should keep in mind available local resources, the time frame inwhich to implement and successfully complete any programming, and the costsassociated with the recommended conditions.

In addition to special conditions, the officer should recommend any restrictions orprohibitions that should be imposed on the candidate, such as restricting employmentor prohibiting possession of weapons.

If the officer deems the candidate unsuitable for participation in the program, the officer,after staffing with a supervisory officer, should provide a justification for denial. Theofficer should thoroughly explain why the determination was made and how specialconditions would continue to preclude the candidate from successful completion.

The officer may provide a copy of the completed report to defense counsel incompliance with 18 U.S.C. § 3153(c)(2)(D). The officer may provide the report to thecourt in accordance with the diversion agreement.

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Chapter 4: Pretrial Diversion Agreement

PR 4.10 Diversion AgreementPR 4.20 Recommending or Modifying Special ConditionsPR 4.30 Recommending Diversion Term Length________________________________________________________________

PR 4.10 Diversion Agreement

The diversion agreement outlines the terms and conditions of pretrial diversionsupervision. For additional guidance on the diversion agreement, see: Guide, Vol 8A, §820 (Diversion Agreement).

PR 4.20 Recommending or Modifying Special Conditions

The officer may recommend that the diversion agreement include special conditions toaddress such issues as risks to the victim, a third party, or the community; thecandidate’s specific needs such as drug treatment or mental health treatment; orreparations such as a fine, restitution, or community service. By interviewing andinvestigating the candidate, the officer should be able to identify and recommend whichconditions will help the candidate successfully complete the program and to avoidrecommending conditions that will provide little or no benefit or increase the likelihoodof failure.

For a list of examples of special conditions that may be included in a diversionagreement, see: Guide, Vol 8A, § 820.30.20 (Special Conditions).

If the officer recognizes a need to change or add conditions during the term ofdiversion, the agreement may be modified with permission from the United Statesattorney’s office and the candidate. See: Guide, Vol 8A, § 820.50 (Modifying theDiversion Agreement).

PR 4.30 Recommending Diversion Term Length

The length of the diversion supervision term is set forth in the diversion agreement(see: Guide, Vol 8A, § 820.20 (Diversion Supervision Term Length)). Taking intoaccount the requirements that the candidate is expected to meet, the officer shouldrecommend to the United States attorney’s office a reasonable time frame that willallow the candidate to complete the conditions successfully.

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Chapter 5: Pretrial Diversion Supervision

PR 5.10 Supervising the Pretrial DiverteePR 5.20 Divertee Criminal Record

PR 5.20.10 FBI Responsibility to Provide Criminal RecordPR 5.20.20 FingerprintsPR 5.20.30 DNA CollectionPR 5.20.40 Flash Notices

PR 5.30 Support Services PR 5.40 RestitutionPR 5.50 Community ServicePR 5.60 Third-Party RiskPR 5.70 Transfer of SupervisionPR 5.80 Modifying the Diversion Agreement _____________________________________________________________________

PR 5.10 Supervising the Pretrial Divertee

The divertee’s supervision should be tailored to his or her needs, possibly includingemployment, counseling, education, job training, or mental health or substance abusetreatment. For additional guidance, see Guide, Vol 8C, §§ 820.10 (Officer SupervisionResponsibilities) and 820.20 (Supervision Objectives).

PR 5.20 Divertee Criminal Record

See: PR 3.50 (Prior Criminal Record).

PR 5.20.10 FBI Responsibility to Provide Criminal Record

During the period of diversion and for at least three years after successful completion ofthe program, the FBI’s Identification Division will provide the divertee’s criminal recordto all authorized requestors.

PR 5.20.20 Fingerprints

The officer should make sure fingerprints are submitted in every diversion case unlessotherwise outlined in the district’s operations agreement.

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The officer has two options for submitting fingerprints. The officer may:

• arrange for the United States Marshals Service to fingerprint thecandidate and forward the fingerprints to the FBI Identification Division(see: United States Attorneys’ Manual, Criminal Resource Manual,Chapter 9-712); or

• collect the fingerprints and forward them to the FBI.

Three years after the successful completion of diversion, the FBI Identification Divisionexpunges and destroys the fingerprint card. However, in child pornography cases, theFBI maintains a permanent record of the fingerprint card and the divertee’s participationin the pretrial diversion program.

PR 5.20.30 DNA Collection

If an officer collects the divertee’s fingerprints, the officer also may be required to collectDNA as mandated in 42 U.S.C. § 14135(a)-(f). Regulations require the collection ofDNA from individuals arrested, detained, or formally charged when fingerprints aresubmitted in connection with a qualifying federal offense (see: 42 U.S.C. § 14135(a)).

If a divertee is a pre-charge referral who has not been arrested or fingerprinted, thedivertee does not need to submit a DNA sample.

Officers may obtain DNA collection kits from the FBI.

PR 5.20.40 Flash Notices

The officer should submit to the FBI a “Flash Notice” (FBI Form I-12) once a candidateis accepted into the pretrial diversion program. The Flash Notice is a fingerprint cardthat facilitates the FBI’s notification to the officer of any new arrest of the divertee.

The form should indicate the diversion status, the diversion expiration date, officercontact information, and other identifying information. “Pretrial diversion” should benoted in the “Disposition” block.

PR 5.30 Support Services

The officer should continually monitor the divertee’s progress while in treatment or other

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http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00712.htm

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00712.htm

http://www.law.cornell.edu/uscode/42/14135(a).html

http://www.law.cornell.edu/uscode/42/14135(a).html

http://www.fbi.gov/about-us/lab/dna-nuclear/fco-buccal-kit

http://www.fbi.gov/about-us/cjis/forms/description-i12


programming to ensure that the divertee is complying with the program requirementsand the established time frame for completing them.

The officer should make regular contacts with support services programs to monitor thedivertee’s progress and address any concerns that program staff may have. Also, sitevisits may help the officer foster good working relationships with the various supportservices agencies. See also: Guide, Vol 8C, § 820.40 (Support Services).

PR 5.40 Restitution

If the divertee is ordered to pay restitution, setting the amount of restitution is theresponsibility of the United States attorney’s office. However, the officer, aftercompleting the interview and investigation, may recommend a reasonable restitutionamount and payment schedule if these are not specified in the diversion agreement. See: Guide, Vol 8C, § 820.50 (Restitution).

Even though it is the responsibility of the United States attorney’s office to establish theamount of restitution, this does not preclude the officer from investigating the matter. The officer should try to contact the victim and assess what financial losses the victimincurred. If the investigation uncovers additional or differing information, the officershould bring it to the attention of the United States attorney’s office.

The officer should regularly monitor the divertee’s compliance with the paymentschedule.

PR 5.50 Community Service

The divertee may be required to perform community service as a condition set forth inthe diversion agreement. See: Guide, Vol 8C, § 820.60 (Community Service).

The officer should maintain a list of civic or nonprofit organizations that will acceptpretrial diversion referrals. The officer should make routine contact with theseorganizations to cultivate good working relationships with them. Routine contact with anorganization, including unannounced community visits, allows the officer to monitor theorganization, monitor the progress of the divertee, and address any concerns orproblems that either the organization or the divertee may have.

The interview and investigation will help the officer know if there are any factors thatwould restrict the divertee’s community service placement. For example, the officermay decide that community service at a community center is not appropriate based on

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the divertee’s prior criminal record or that a divertee with mental health problems is nota suitable candidate for community service.

PR 5.60 Third-Party Risk

For guidance on assessing and disclosing any third-party risk the divertee may pose,see: Guide, Vol 8C, § 820.70 (Third-Party Risk), and PR 3.60 (Third-Party Risk).

PR 5.70 Transfer of Supervision

Procedures for requesting and transferring diversion supervision to another district aresimilar to those for requesting courtesy supervision for a pretrial release case, exceptthat the officer should solicit input and approval from the United States attorney’s officeconcerning the relocation of a pretrial divertee. See: Guide, Vol 8C, § 545 (CourtesySupervision).

If the United States attorney’s office allows the transfer of supervision, the officer shouldbe prepared to forward to the new supervising district all relevant information regardingthe status of the divertee.

PR 5.80 Modifying the Diversion Agreement

The United States attorney’s office may modify the terms of the diversion agreement. See: Guide, Vol 8A, § 820.50 (Modifying the Diversion Agreement).

The officer should inform the United States attorney’s office, in a memorandum, if theofficer sees the need to modify the agreement and give a justification for themodification. Since the term of diversion cannot normally exceed 18 months unlessadditional time is sought by the United States attorney’s office (see: Guide, Vol 8A, §820.20 (Diversion Supervision Term Length)), the officer should be mindful of timeframes and make requests for modifications as early as possible.

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http://jnet.ao.dcn/Guide/Vol_8_Probation_and_Pretrial_Services/Part_C_Supervision_of_Federal_Defendants/Ch_5_Selecting_and_Executing_Supervision_Strategies.html#545

http://jnet.ao.dcn/Guide/Vol_8_Probation_and_Pretrial_Services/Part_C_Supervision_of_Federal_Defendants/Ch_5_Selecting_and_Executing_Supervision_Strategies.html#545





Chapter 6: Violations

PR 6.10 Types of ViolationsPR 6.20 Response to Violations _____________________________________________________________________

PR 6.10 Types of Violations

There are three types of violations that a divertee may incur while on supervision:

(1) New criminal offense - The divertee is charged with new criminal conduct.

(2) Absconding supervision - The divertee’s whereabouts are unknown or thedivertee is willfully not in contact with the officer.

(3) Technical - Any other violation.

PR 6.20 Response to Violations

The officer is to report, in the form of a memorandum, all violations of the of the pretrialdiversion agreement to the United States attorney’s office, not to the court.

The officer should refer to Guide, Vol 8C, Ch 7 (Managing Noncompliant Behavior), forstrategies and guidance on responding to the divertee’s noncompliance, whileconsidering the differences in supervision objectives for pretrial and diversionsupervision.

If the divertee is charged with a new criminal offense, the officer must timely inform theUnited States attorney’s office and provide relevant information such as police reports,hearing status, and bond status.

The officer’s recommendation for action may include:

• corrective action by the officer with no action by the United Statesattorney’s office;

• extension of the supervision period;

• supplemental or additional special conditions;

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http://jnet.ao.dcn/Guide/Vol_8_Probation_and_Pretrial_Services/Part_C_Supervision_of_Federal_Defendants/Ch_7_Managing_Noncompliant_Behavior.html


• termination of diversion supervision;

• initiation of prosecution (United States attorney’s office authority); or

• termination of the divertee’s participation in the diversion program (UnitedStates attorney’s office authority).

The officer should examine the totality of the circumstances regarding the violation andtake into account several factors. The officer should consider whether the divertee wasforthcoming about new arrests or other violations (such as drug use), whether he or shehas expressed remorse for the violation, whether he or she is agreeable tosupplemental or additional conditions, and whether he or she poses a danger to a thirdparty or to the community.

The United States attorney’s office may seek to add or modify the conditions of thediversion agreement in response to violations.

Although diversion supervision generally should be as minimal as necessary toaccomplish the objectives of the program, the United States attorney’s office mayextend the diversion term to enable the divertee to fulfill the terms of the diversionagreement, such as complete restitution payment or community service hours. If theUnited States attorney’s office approves extending the diversion term, the diversionagreement must be modified and agreed to and signed by all parties. See: Guide, Vol8A, § 820.50 (Modifying the Diversion Agreement).

If the divertee commits a violation that makes continued supervision inappropriate (suchas a new arrest that results in incarceration), the officer should terminate supervisionafter consulting with a supervisor and the United States attorney’s office. The officer, ina memorandum, should notify the United States attorney’s office that the supervision ofthe divertee is being terminated and give the reasons for the termination. If the officerforwards this notification to the United States attorney’s office and receives noresponse, the officer should issue a follow-up memorandum and contact the assistantUnited States attorney by phone or in person.

Although the officer, with supervisory approval, retains the authority to terminate adivertee from supervision, decisions to terminate the divertee from diversion statusand/or to pursue prosecution rest with the United States attorney’s office. Whenprosecution is resumed, the United States attorney must furnish the divertee withnotice.

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Chapter 7: Termination

PR 7.10 Termination at Expiration DatePR 7.20 Early Termination PR 7.30 Case Closing _____________________________________________________________________

PR 7.10 Termination at Expiration Date

The officer should be mindful of the date the diversion term is scheduled to expire andany requirements the divertee needs to complete before that date. The officer shouldmake any requests for extension of the diversion term, if necessary, as early aspossible.

At least 60 days before diversion is scheduled to expire, the officer should conduct acriminal records check and submit a summary report to the United States attorney’soffice regarding the divertee’s adjustment and recommendations for termination orother action (such as extension of the diversion term or referral for prosecution). If thedivertee has unsatisfied conditions, such as unpaid restitution, or has other violations,the officer must address those in the summary report, consult with the United Statesattorney’s office, and recommend appropriate action. The United States attorney’soffice must approve the termination or alternative disposition.

The officer sends notice of satisfactory completion to all parties. If the divertee has metall requirements of the diversion program, the United States attorney’s office willformally decline prosecution or dismiss the charges if diversion was granted post-charge. (Note: If a charging document was filed against the defendant, the UnitedStates attorney’s office should petition the court to dismiss the charges. If no formalcharges are pending, the United States attorney’s office should notify defense counselthat charges will not be filed.) Once the officer receives proof that the United Statesattorney’s office declined prosecution or dismissed the charges, the officer mayterminate the divertee from supervision.

PR 7.20 Early Termination

The officer may recommend termination of the diversion period before the scheduledexpiration date if the divertee has satisfied all terms of the diversion agreement andmade a satisfactory adjustment to supervision. The United States attorney’s officemust approve the early termination.

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Satisfying all terms of the diversion agreement does not guarantee early terminationfrom the program. The officer should assess the divertee and his or her overalladjustment to the diversion program while making sure that continued placement in theprogram is not viewed as a punitive measure.

If early termination is warranted, the officer should conduct a criminal record check toconfirm that the divertee has no new arrests and should prepare a summary report witha recommendation to the United States attorney’s office requesting early termination. The summary report should outline the divertee’s progress on supervision, therequirements that the divertee successfully completed, the dates the requirements weremet, the results of a local records check, and a brief recommendation that the diversionperiod be terminated earlier than set forth in the original diversion agreement.

PR 7.30 Case Closing

When diversion supervision is terminated, the officer should take the following actions:

• complete a final records check;

• notify the divertee of completion of supervision;

• close the diversion case statistically;

• in the chronological record, prepare a closing summary that captures thetermination date, the progress of the divertee during the program,completed requirements, and a prognosis of future behavior; and

• submit to the FBI a Final Disposition Report (Form R-84). (Note:Submitting this form notifies the FBI Identification Division to update thedivertee’s record to reflect the disposition of the case. Unless the recordis formally sealed or expunged, submission of the Final Disposition Reportmerely reflects a satisfactory completion of diversion; the diversioninformation is not removed from the divertee’s criminal record.)

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