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Criminal – Speedy Trial – Pretrial Diversion – Health Care Fraud

Although defendant in this health care fraud case “has no criminal record and did not benefit financially from the conspiracy beyond her regular salary,” a Charlottesville U.S. District Court cannot approve continuance of this matter pending defendant’s completion of a pretrial diversion program as the government has not met the requirements to obtain a continuance on this basis under the Speedy Trial Act.

In light of the specific statutory language in the Speedy Trial Act that covers cases of pretrial diversion, I do not find that the government has made a showing that the ends of justice served by ordering a continuance in this action would outweigh the best interest of the public and the defendant in a speedy trial. While the government and defendant may agree in principle that this case be resolved by pretrial diversion, and both parties may even consent to the requested continuance of uncertain duration, that does not, by itself, satisfy the requirements of the Speedy Trial Act.

The government has made no showing as to why the parties could not have concluded a pretrial diversion agreement contemporaneously with the filing of the codefendant’s plea agreement on Sept. 28, 2009. Further, the government has not made known to the court the terms, and duration, of any such agreement between the parties.

Unless and until the requirements in 18 U.S.C. § 3161(h)(2) are met and a written pretrial diversion agreement is filed or, for good cause shown, otherwise made known to the court, or the government provides independent justification for the issuance of a continuance, the court will not grant the proposed continuance of uncertain duration.

Motion for continuance denied without prejudice.

U.S. v. McCrae (Moon, J.) Cr. No. 3:09cr00008, Oct. 1, 2009; USDC at Charlottesville, Va. VLW 009-3-550, 5 pp.

VLW 009-3-550

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