Alternatives to prosecution

• Author: Barry Boss/Jeffrey H. Rutherford/Michael J. Proctor
• Pages: 183-212

ALTERNATIVES

TO PROSECUTION

7-1

CHAPTER 7

ALTERNATIVES TO PROSECUTION

I. IN GENERAL

§7:1 Discretion to Prosecute

§7:2 Alternatives

II. PRETRIAL DIVERSION

A. Overview

§7:3 Def‌inition

§7:4 Statutory Authority

§7:5 Timing

§7:6 Effect

§7:7 Contractual Nature

§7:8 Divertable Offenses

§7:9 Diversion Candidates

B. Proposing Diversion

§7:10 Obtain Operations Agreement

§7:11 Confer With Pretrial Services Off‌icer

§7:12 Review Sample Agreement With Client

§7:13 Contact Prosecutor or Obtain Referral by Pretrial Services Agency

§7:14 Helpful Factors

C. Eligibility

§7:15 Department of Justice

§7:16 United States Attorney

D. Consent and Waiver of Rights

1. Requirements

§7:17 Consent in Writing

§7:18 Rights Waived Before Charges Filed

§7:19 Rights Waived After Charges Filed

2. Admitting Wrongdoing

§7:20 Determine if Required in Advance

§7:21 Department of Justice Policy

§7:22 Get Agreement on Use of Statements

E. Supervision

1. Parameters

§7:23 Length

§7:24 Conditions

2. Violation of Conditions

§7:25 Effect

§7:26 Notice

§7:27 Challenging Termination

ALTERNATIVES

TO PROSECUTION

Federal Criminal Practice 7-2

F. Completion

§7:28 Effect

§7:29 Future Sentencing

III. COOPERATION WITH INVESTIGATION OR PROSECUTION OF OTHERS

A. Overview

§7:40 Prosecutorial Discretion

§7:41 Factors to Consider

B. Proffer

§7:42 Requirement

§7:43 Made in Person

§7:44 Proffer Letter

C. Uses of Information

1. General Principles

§7:45 Governing Standards

2. Direct Use

§7:46 Informal Use Immunity

§7:46.1 Prohibit in Proffer Letter

§7:46.2 Binding Contract

§7:47 Formal Use Immunity

§7:48 Transactional Immunity

3. Derivative Use Immunity

§7:49 Def‌inition

§7:50 Advantages

§7:51 Prosecutor’s Reluctance to Grant

§7:52 Effect

§7:53 Discuss in Proffer Letter

4. Sentencing

§7:54 Advisory Guidelines

§7:55 Federal Rules

§7:56 Prosecutor’s Agreement

5. Other Uses

§7:58 Impeachment

§7:59 Prosecution for False Statements

§7:60 Breach

§7:60.1 Defendant’s Breach Releases Government From Agreement

§7:60.2 Burden of Proof

D. Quid Pro Quo for Cooperation

1. Nonprosecution Agreement

§7:61 Department of Justice Policy

§7:62 Requirements

2. Guilty Plea to Reduced Charges

§7:63 Benef‌its

3. Sentencing Concessions

§7:64 Downward Departure

§7:65 Extent of Downward Departure

§7:66 United States Attorneys’ Policies

§7:67 Modif‌ication After Sentencing