Former Guam Homeland Security adviser Ambrosio Constantino, who was convicted in federal court earlier this year for taking part in a recruitment fraud scheme at the National Guard, could have his indictment dismissed so long as he participates in a federal supervision program.
Chief Judge Frances Tydingco-Gatewood on Sunday approved Constantino’s motion to complete the conditions of a Pretrial Diversion Program agreement that he had signed last year. If he fails to successfully complete the program, he’ll continue his two-year prison sentence.
Constantino had been part of the National Guard’s Guard Recruiting Assistance Program. The program allowed certain Guardsmen to work as recruiter assistants who would collect bonuses for referring potential recruits to the service.
Participants in the program weren’t allowed to work with the recruiters when collecting recruits’ information; however, a national investigation of the program found that Guardsmen had been collaborating with the recruiters anyway to collect the bonuses.
Constantino this past February was found guilty of theft of government property and aggravated identity theft for defrauding the federal government. Both Constantino and another Guardsman, Franklin Babauta, were accused of reportedly collecting $2,000 through the scheme. Constantino referred a nominee he didn’t actually recruit, news files state.
In December 2015, Constantino and federal prosecutors had agreed that he should participate in pretrial diversion, but the court on Jan. 11 denied the motion based on several reasons and concerns.
The Pretrial Diversion Program is meant to “divert certain offenders from traditional criminal justice processing” by undergoing supervision with the U.S. Probation Service, according to the Justice Department.
“Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed,” the Justice Department states. “Unsuccessful participants are returned for prosecution.”
In her latest decision, Tydingco-Gatewood explained that the court denied the previous motion because prosecutors were confused “about the facts and assessment of the case, particularly as to who was more or less culpable” — Constantino or Babauta.
Tydingco-Gatewood also cited a fairness issue, as the U.S. attorney’s office hadn’t offered pretrial diversion agreements with “other defendants whose offenses were considered less serious or similar to the instant offense.”
Furthermore, Tydingco-Gatewood said the court also denied the pretrial diversion proposal based on the concern that a memorandum of understanding or an operations agreement hadn’t been established between the prosecutors and the national probation office.
However, the reason there was neither an MOU nor the probation office’s signature on the agreement, was because the court had ordered the chief probation officer “to stop the investigation in determining (Constantino’s) suitability” for pretrial diversion.
“Had it not been for the court’s instruction to the USPO to stop the investigation, the USPO would have completed the determination of the defendant’s suitability, and the Chief U.S. Probation Officer could have then determined if the defendant was suitable and if so, the Chief U.S. Probation Officer could have signed off on the pretrial diversion agreement,” Tydingco-Gatewood wrote.
“Accordingly, it would not be equitable for the court to deny the defendant’s motion for reconsideration based on the argument that the conditions precedent was not met,” she added. “They were not met because of the court’s order to the USPO, and the defendant should not be penalized for this reason.”
Prosecutors have argued against Constantino’s latest request for the court to reconsider his pretrial diversion agreement by stating that such a motion “should be granted only in rare circumstances,” for instance, when new facts come to light.
“Mere disagreement with an order is an insufficient basis for reconsideration,” prosecutors stated in court documents.
Tydingco-Gatewood ordered the chief probation officer and the prosecution team to establish an operations agreement for the pretrial diversion. The probation officer would then determine whether Constantino is suitable for the program.
If Constantino completes the program “the court will set aside the jury verdict and dismiss the case,” according to Tydingco-Gatewood.