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March 26, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. John H. Bayly, Jr., Trial Judge)

Before Terry, King, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Appellant was convicted by a jury of simple assault in violation of D.C. Code § 22-504 (1989). On appeal, appellant contends that the trial court erred in ruling that the government acted lawfully in terminating him from the United States Attorney's pretrial diversion program *fn1 and that the court erred in ruling that the government acted lawfully in declining to readmit him. We affirm.


The government's evidence showed that on April 12, 1990, at 12:30 p.m., Arlo H. Darby, a truck checker employed at a construction site at First and G Streets, Northeast, stepped out onto First Street to stop the traffic in order to permit a truck to leave. As he was stopping the traffic, Darby saw the rear end of a car passing by and tapped it once with his traffic flag. The car continued past Darby and then stopped. Appellant, the driver of the car, got out and ran back toward Darby. Just before reaching Darby, appellant said, "If you weren't so old I'd hit you." Appellant then pushed Darby violently with both hands, causing him to fall to the ground. As Darby tried to catch himself with his left hand, he injured his left wrist. Appellant then ran back to his car and drove away. There were several witnesses to the incident, one of whom arranged for Darby to be taken to the hospital for treatment.

Darby's son, an attorney, subsequently filed a police report, and on June 16, 1990, a detective interviewed appellant at his home. Although appellant initially denied any knowledge of the incident, he ultimately admitted that he recalled it. *fn2 Appellant was charged with one count of simple assault on June 21, 1990.

On July 13, 1990, appellant applied for admission into the pretrial diversion program. Following an interview, he was admitted into the program on July 26, 1990, at which time he signed a Pretrial Diversion Agreement ("Agreement"), stating in relevant part:

If the United States Attorney determines a) that you made any false statement in your application for admission to diversion or in your eligibility interview, or b) that you violated any condition of the Agreement, the United States Attorney may modify the conditions or terminate you from the program and proceed with or reinstitute the prosecution.

The United States Attorney's Office determined thereafter that appellant had made a false statement in connection with his application for diversion. Consequently, the government decided to terminate appellant from the diversion program in accordance with section (a) of the termination provision of the Agreement; on August 6, 1990, the government communicated its decision to appellant's attorney. The government reiterated its decision to appellant's attorney at a status hearing on August 8, 1990, at which time an Assistant United States Attorney also discussed with appellant's counsel the possibility of appellant's readmission into the program and the possibility of a restitution agreement between appellant and Darby.

On August 14, 1990, appellant sought to be readmitted into the diversion program. As part of that effort, appellant and his counsel met with Kenneth W. Cowgill, Chief of the Misdemeanor Trial Section, United States Attorney's Office, to discuss the possibility of appellant's readmission, including the possibility of a restitution agreement. The government made clear at that time, however, that the false statement issue had still not been resolved. That was the last occasion during which the government discussed a possible restitution agreement with appellant. During that Discussion, appellant's counsel asked the government to identify the specific false statement at issue, but the government declined to do so.

Appellant's counsel subsequently wrote a letter dated October 1, 1990, to Mr. Cowgill regarding appellant's termination. The letter stated in relevant part: "I would very much appreciate it if you would reconsider your position an allow us the opportunity to refute the alleged false statement made by my client during either of the two diversion conferences." In a letter dated October 10, 1990, Mr. Cowgill responded that the decision to terminate appellant based on a false statement was "made within a few days of execution" of the Agreement and that the termination decision had been communicated to appellant's counsel before appellant was given a community service assignment. Mr. Cowgill concluded the letter by stating that appellant would not be readmitted to diversion.

On October 12, 1990, appellant filed a motion to dismiss the criminal charges against him, or, in the alternative, to reinstate him into the diversion program. The trial court heard oral argument on the motion and then took it under advisement until after the close of evidence at trial. The court denied appellant's motion on February 27, 1991. Thereafter, appellant was tried and convicted before a jury; the trial court imposed a fine and a term of probation. This appeal followed.


The government has broad discretion in deciding whether to prosecute an accused. Fedorov, supra note 1, 600 A.2d at 376. "'So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute . . . generally rests entirely in his [or her] discretion.'" Id. (emphasis added) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978)). Courts properly hesitate to examine the government's decision to prosecute because "that decision 'is particularly ill-suited to judicial review.'" Id. (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)). "Such factors as the strength of the case, the prosecution's general deterrence value, the government's ...

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