DOJ Office of Professional Responsibility (OPR) Issues Decision on Pretrial Diversion Complaint

          SHAWN N. ANDERSON, United States Attorney for the Districts of Guam and the Northern Mariana Islands (NMI), announced today that the Office of Professional Responsibility (OPR) for the United States Department of Justice has concluded an inquiry into the pretrial diversion practices of the United States Attorney’s Office in the District Court of Guam.  The OPR inquiry “revealed no evidence” that the pretrial diversion decisions of the office involved any prohibited or inappropriate factors.

          The inquiry was initiated by the District Court of Guam during sentencing proceedings for two Chinese nationals in United States v. Lu et al., No. 17-CR-00041 (D. Guam). The defendants had been arrested after arriving on Guam from Los Angeles with over 118 counterfeit credit cards from foreign banks. The defendants were charged with Possession of Fifteen or More Counterfeit or Unauthorized Access Devices, in violation of 18 U.S.C. Section 1029(a)(3), a Class C felony. The Court questioned the applicability of pretrial diversion for the defendants. Diversion is an alternative to criminal prosecution that enables certain offenders to avoid traditional criminal proceedings in favor of a program of supervision and services administered by United States Probation and Pretrial Services. If the program is successfully completed, the charges against a defendant are dismissed. The U.S. Attorney declined to offer pretrial diversion in the matters before the District Court.

          In February 2018, the Court announced that it would request the Department of Justice to investigate whether there was “disparate treatment” by the U.S. Attorney’s Office in its handling of pretrial diversion offers. OPR reviewed the Court’s concerns and the relevant pretrial diversion decisions against the limits on prosecutorial discretion set forth in the Department’s United States Attorneys’ Manual Section 9-27.260, which prohibits prosecutors from taking into consideration a “person’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs.” OPR found no evidence of unethical conduct.

          United States Attorney Anderson states, “We appreciated the opportunity to fully cooperate with OPR and respond to the Court’s concerns. Prosecutorial discretion, which includes the decision on whether pretrial diversion is appropriate in any given case, has an important function in the criminal justice system. The U.S. Attorney’s Office respects the limitations on its discretion and routinely relies on the Department of Justice’s guidelines in making diversion decisions. Our office will continue to consider criminal offenders for this type of disposition on a case-by-case basis.”