separation of powers principles when the court rejected a pretrial diversion agreement that the government and mr account constantino had agreed to and then there's a subsidiary issue as to what the remedy should be if this court agrees  and before i'm sorry but before you even start when you say pretrial services agreement it's been referred to as a diversion agreement correct and i don't know if maybe different districts have different ways of referring to things but technically was it a deferred sentencing agreement or was it a diversion or what i would consider a diversion which the court has never involved  diversion and i think that's part of the problem with the confusion before the district court it was intended to be a pretrial diversion agreement which according to the u s attorney's manual can be offered it any time up until trial but i believe that the district court treated it as a deferred plea agreements deferred prosecution deferred sentencing agreement right correct so there was never anticipated or i like to know was it anticipated that the defend would plead guilty no then the tire agreement it was anticipated that he would serve twelve months of supervision and abide by certain conditions including pain the full restitution that was entered and then the u s attorney would never charge no they would dismiss the charges because he had already been indicted i'm sorry yes look after that he never pled guilty and he was not it was not anticipated that he would plead guilty before being placed on the supervision that's correct and i think that was part of the problem that the district court struggled with because the court indicated you know once you've charged this person i think i have to treat it like a plea agreement or a deferred sentencing agreement but that was not the prosecutor's intent and i believe that the government and i were in agreement it was error for this district court to reject the pretrial diversion agreement and so it looks like you both judgment in this case that's correct and basically start a new well and that's i think where we differ is what the remedy is and i ask you for just a moment that the reason that the district court could not do anything here or should not have done anything here is what because it didn't have any jurisdiction well it was beyond the court's authority and because this was a charging decision it was not it was not something in the he's been indicted i correct and there are no i know some of the district courts confusion right there not a ton of cases in this area but both the governor i relied on the two cases one from the second circuit each as b c and then another from the d c so d c circuit the fokker services case and both of those cases make it very clear that charging decisions are within the thory of the executive branch and and i think that is the confusion because for deferred sentencing that implicates rule of love and see one and also a speedy trial long period of time in a true pretrial diversion agreement at least my understanding and i'm pulling from my knowledge of practice and the culture in the district that i came from a preacher a true pretrial divers agreement did not involve the judge at all and i'm curious why did you all go to the judge for permission or did she call you in trying to figure out what happened there i think the problem was an indictment had already been handed down and so that was the confusion is there were already charges pending before the court that is going to be my question most of these occur without it is that right that's correct and i believe that the u s attorney before the district court tried to explain because this occurred and the witnesses and agents had a whole kind of dispersed it was very hard for the u s attorney to figure out what the actual evidence was going to be until after they had handed down t in have a diversion that's correct they have been under some supervision for a while that's correct and you know there were three u s attorneys who spoke to this case before the district court and they said they did not take this they looked at the evidence very carefully before they decided to offer this pretrial diversion agreement so i do believe we're in agreement with the government the only issue is the remedy what do we do so i believe that the government is suggesting we should send the case back and now reinstate the pretrial diversion agreement and have mr constantino serve twelve months as he'd been what his dad he has been under supervision since he was indicted in june of two thousand and fifteen so he's been in under supervision for over three years he's met everything that he needed to do under the original pretrial diversion agreement including paying all the monetary penalties he's paid three thousand four hundred five dollars i'm sorry three thousand at three thousand forty five dollars to the court including the full restitution with interest he's paid a five hundred dollars fine and he's paid the two hundred dollars special has not been in custody at all he's been under supervision by i believe in the pretrial and probation officers are combined but i tried just set out in my reply brief the you know the similarities between the original pretrial diversion agreement and his conditions of release which are very similar but it's interesting because what you're asking us to do we can't get involved i mean just like the district court couldn't get involved with the in determining whether or not he's complied with the pretrial diversion agreement for the same reason that you argued just a moment ago as to why it was incorrect for the made them beyond the district court's purview so it's kind of a interesting dilemma here because understand from the briefing and then what you've come firmed here today is that the parties are in agreement that it should be vacated and should be sent back i don't know what more we would be able to do at this point without overstepping archer to indicate whether or not he's already met all these conditions and if he has then he should be required to serve yet another twelve months when he's been under supervision for three years so upon remain and ask for a factual finding us  whether or not he's met these conditions and if he has then he should the indictment should be dismissed he should be discharged reassignment to another district judge or mr yes i am not and i don't there is no leaves that's possible only one district judge and mr constantino does not want to delay this any further so i believe if we asked for reassignment to another judge if we were to get that somebody would have to be brought in from outside of since there's only one district judge and he does not want to delay this any further if i may i'd like to reserve my meeting time for rebuttal thank you very much  hearings went on then she started getting into disparity lenient you know she thought her sentence was too lenient or our proposed resolution was too lenient and it continued to go off the tracks after that point in time but there wasn't even a signature line for her it was basically what was invision was admittedly her pretrial services department to approve whether he was qualified and then to monitor his compliance and after which all cases  be dismissed so today i understand he went we went you all went to trial there was a verdict and now there's an appeal and you're here today and it's my understanding and if you could come firm  that you also agree with appellants counsel that the case that the case should be the judge should be vacated and sent back is that correct or not it's correct i mean it's a decision that we wrestled with we s outside advice on because yes we did obtain a guilty verdict after a ten day trial but at the same time we had to review the laws of pertains to this area and the fact that this was an encroachment in an area that is left to our submit that it's not an issue of whether he complied or not it's i think the only thing that this court can do is send it back and maybe the court itself could decide but i would i would like to point out that it's ended that for what what we would say if we would say the defendant thought a motion for new or a new trial after the fourteen days but on this on these grounds in light of the new cases that had come out and he said allow us to comply then he appealed to the defendant iteration of a question really and at no point in time in any of the briefings as or been cited a case a statute a rule secondary sources this is just they're asking for some form of equity and we would dispute that that is something that's appropriate you know given this posture but yes your honor is this is a unique case unique circumstances there's not much law on these how long has it been since the original  oh i guess it was originally entered into two thousand and fifteen and then there was about a year of hearings in sas conferences and what have you i believe the conviction was could be a year and a half ago i nickel and just remand and use the language that was used in that case substituting the court's rejection of the plea agreement in that case with its rejection of it for prosecution in this case and just remind me in  that's where the conviction was vacated after the district court refused to accept the plea deal yes try to base and the parties went to trial if that's so you think it should model whatever disposition models which that's certainly not going to happen here since this defendant received to your mentor a minimum sentence after a verdict but the government believes that you could adopt the lingo usually that you could you can essentially concede that that now they can treat this is as if it were had been a plea that well what you're doing trying yeah so i guess though you both agree that there's that the judgment should be vacated and it be sent back it sounds like for the pretrial diversion agreement to be to take place and then what you all are disagreeing about is whether or not there should be some  some time of supervision or whether that supervision has already should have been sufficient based on what he has been having to agree to for the terms of his release up to this i guess the district court would also have to be careful not to because that's not that's not her purview so i'm just trying to figure out who you know i think this is going to be a dispute that you all have to resolve and if you can't resolve  whether or not he should still be on supervision or not then you all have decisions that you would normally make in any case on you know at this point just this one has a little bit of history book basically i understand innit i say make sense to wipe clean the slate here go back and start from the beginning and see what's in the best interest for both parties you know mr constantino and then for the for the united states but i'm not quite sure that the court the district court just you know is going to be able to resolve your disputes here if it's truly a pretrial diversion agreement  out and come back with a report and if you can't work it out then the judgment and there's a alternatives i mean the hook here is pretrial services i mean if we if we took service the equation then we could just see we could have compliance on the side could dismiss without prejudice have compliance and you know and then never follow again so there are there are opportunities to resolve it well let's say a pretrial diversion creech all services involved because apparently you have some conditions that require them to monitor i guess if there were conditions that they weren't required to monitor that would take out pretrial services but at least in the district i came from even the pretrial services was involved the judge was never involved and as was the intention from the beginning with this case ok you have anything else to help it's going to send him back to have like eighty and then you're go you're asking the court to do something in court to be emboldened and if it involves a speedy trial act then the court does have purview over that well that that that that's the issue i mean well it does have a role because it has to find that that i guess good cause i'm not sure what the language is and statute in the speech trial but yes that is an involvement of the court and that's what was the issue in the out of circuit case of fokker which we both have relied upon you know these are all thorny questions in  very complicated there's very little law if any on on this area there's really no statute controlling deferred to for prosecutions but then the date that's better result below than it is here and that's what we would so maybe this is going to happen again agreement with the court i think it was on in january two thousand seven hundred she kept asking for an operating agreement should there is one in place but whether we seek this again given the headaches that it's cause honor i don't have very much time but i just want to point out we're in agreement that the case should be vacated and remanded and that pretrial diversion agreement should be reinstated the only issue then is whether we should go forward serve another twelve months or whether pretrial service who supervised him can give some kind of report and if he has indeed already met all of his conditions why it can't be terminated earlier than twelve months we'll have to have th that dismissed won't you correct and so the district court will have to be involved to that extent at the end of the pretrial diversion once he's completed all of his conditions the indictment will have to be dismissed so that's the speedy trial act and so the judge does have you know some responsibility there if you're asking that that speedy trial be waived that and that's in essence what you asked right i mean that he not need to have his for trial as a as a required under the law that's point right correct and told that the judge judge does have some responsibility in this case because of that and that is the judge's limited authority under both h s b c case and the fokker services case and the speedy trial act tolling is written into the pretrial ino has already met his conditions so the judge than responsibly would be just to make sure that the defendant knows that he has a speedy trial that's the rise to under the law for him but that it won't be happening if question who gets the pretrial diversion agreement what the criteria is that's all the executive decision is that correct i believe your honor is correct ok thank you sam ok if there's nothing further thank you both docket is united states of america versus michael walker