United States of America v. AMBROSIO D. CONSTANTINO, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AMBROSIO D. CONSTANTINO, Jr.,
Defendant-Appellant.
No. 17-10173
D.C. No.
1:15-cr-00029-FMRG-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief Judge, Presiding
Argued and Submitted August 14, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.
The decision to offer a defendant a pretrial diversion agreement in a given
case rests squarely with the prosecutor. See United States v. Edmonson, 792 F.2d
1492, 1497 (9th Cir. 1986) (explaining that decision-making authority regarding
the prosecution of cases lies with the Attorney General and his or her delegates).
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
SEP 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Here, because the district court exceeded its authority when it rejected such an
agreement between the government and Ambrosio Constantino and the parties
agree that we should vacate the judgment and remand this case, we vacate the
judgment of the district court and remand for further proceedings.
Constantino was a major in the Guam National Guard. He was indicted on
two counts arising from his efforts to recruit another individual to the Guam
National Guard: theft of government property and aggravated identity theft. After
he was indicted, the government and Constantino intended to enter into a pretrial
diversion agreement. The agreement provided that, in exchange for Constantino’s
acceptance of responsibility of the alleged misconduct, the government would
defer prosecution for twelve months, so long as Constantino complied with the
agreement’s conditions. The diversion agreement itself was unusual in that it came
after a formal indictment.1 The district court, however, rejected the parties’
agreement, the case proceeded to trial, and a jury convicted Constantino on both
counts.
1 At oral argument, the parties acknowledged that they intended the agreement to
be a pretrial diversion agreement but that the district court treated it as a deferred
sentencing agreement. A true pretrial diversion agreement would not require any
court approval but the government’s entry of an indictment here may have led the
district court to treat the parties’ agreement as a deferred sentencing agreement. It
is undisputed that sentencing matters are well within the purview of federal courts.
See, e.g., United States v. Sherpa, 97 F.3d 1239, 1244–45 (9th Cir. 1996)
(explaining that sentencing is “the province of the judge” and citing to several
cases). The apparent confusion the indictment generated appears to have affected
all of the proceedings below.

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Following the jury’s verdict, the district court reconsidered its decision to
reject the “pretrial diversion agreement.” But, after the government represented
that it no longer intended to offer Constantino the diversion agreement post-trial,
the district court again reversed course and sentenced Constantino to a term of
imprisonment of two years and one day, plus a fine and restitution.
On appeal, Constantino argues that the district court violated separation of
powers principles by rejecting the parties’ pretrial diversion agreement.
Importantly, the government agrees. “[U]nder our system of separation of powers,
the decision whether to prosecute, and the decision as to the charge to be filed,
rests in the discretion of the Attorney General or his delegates, the United States
Attorneys.” Edmonson, 792 F.2d at 1497. A district court has extremely limited
authority to inject itself into a true pretrial diversion agreement because it typically
occurs pre-indictment and does not concern a sentencing matter.
In this case, the district court overstepped its authority by interfering with
implementation of the parties’ intended pretrial diversion agreement. However, as
noted above, the confusion appears to stem from the fact that the government filed
an indictment against Constantino and created the appearance of a deferred
sentencing agreement instead of the intended pretrial diversion agreement.
Nevertheless, the district court erred by questioning the U.S. Attorney’s office’s
policies regarding the use of and criteria for deciding when to offer pretrial

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diversion agreements. The district court further erred by questioning the
prosecution’s attempted use of the parties’ agreement here. Because the district
court based its rejection on reasons unrelated to perceived illegal or unethical
actions by the prosecution or speedy trial concerns, it exceeded its authority.
We remand to the district court2 to allow the parties to be able to enter into
their original pretrial diversion agreement or otherwise proceed in accordance with
this disposition.
VACATED and REMANDED.
2 Although the government requests that on remand we transfer this case to a
different judge, having considered the relevant factors for reassignment, we decline
to reassign this case. See United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.
1979) (detailing the factors courts weigh when determining whether to assign a
case to a different judge on remand).

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