PROSECUTION RESTS AGAINST FORMER GUAM GOVERNOR

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By Theresa Merto

HAGATNA, Guam (Pacific Daily News, July 5) -- Defense attorneys for former Governor Carl Gutierrez and two former cabinet members yesterday asked Superior Court of Guam Judge Katherine Maraman to acquit their clients because the government has failed to prove its case.

After the prosecution’s final witness was questioned and excused and Special Assistant Attorney General Frederick Canavor rested the case yesterday, defense attorneys quickly reacted by submitting motions to have their clients acquitted.

It was the latest development in the third week of the trial against Gutierrez, his former chief of staff, Gil Shinohara, and former airport Executive Manager Gerald Yingling. Each face multiple criminal charges in connection with allegedly using government resources and personnel at Gutierrez’s Urunao ranch.

Twenty-one prosecution witnesses, ranging from Department of Public Works and Government House employees to Guam Police Department officers, have taken the stand. Several testified they either brought construction materials to the ranch in Dededo or worked there. Others said they installed a water meter and brought a government-owned mulching machine to the ranch.

Yesterday, defense attorneys said the prosecution failed to prove its case. Deputy Attorney General Basil O’Mallan yesterday asked to be given until today to respond to the motions. The judge said the prosecution can provide a written response and argue the motion today at 9 a.m.

One of Gutierrez’s attorneys, Randall Cunliffe, who also is a Democratic senator, said the government did not prove the conspiracy charges. The charge of conspiracy is an agreement between two or more people to commit a crime, he said. The government is required to prove the "overt act," he said.

"The case law indicates that if there is no meeting of the minds, ... no conspiracy can exist. It is also clear that the court must find the parties voluntarily joined the conspiracy and intended to carry it out," Cunliffe.

"It is our position that they have not shown any conspiracy," he added. "They have not shown a purpose. They have not shown a connection by these defendants to a conspiracy."

Cunliffe said there also was no evidence for the other charges against the defendants, including theft of property. He said there was no testimony that: the government employees who had gone to Urunao were directed by Gutierrez to go there; that anyone believed any water pipes were stolen; or that Guam Waterworks Authority pipes were used at Gutierrez’s property. There was also no testimony the mulching machine was ever used by Gutierrez or that any mulch came from Gutierrez’s property.

"The government has utterly failed in meeting the requirements in proving each and every element of each of every charge," Cunliffe said.

The only witness to take the stand yesterday was Guam Police Department Officer John Mantanona.

Gutierrez’s other attorney, David Lujan, cross-examined Mantanona for several hours about a search of Urunao the officer had taken part in. Mantanona was the case agent and all reports regarding the investigation went to him.

A search warrant was executed on January 8 and 9 of this year, but Mantanona said Superior Court Presiding Judge Alberto Lamorena had signed the search warrant Jan. 6 -- two days before the warrant was actually executed.

Mantanona said police did not do the search the day the warrant was signed because they were short on "manpower." Police set up security Jan. 8 and stayed there until the search resumed the following day.

They did not set up security on January 6 and 7, Mantanona said, adding there is no way of knowing whether anything was taken out of the ranch during those two days.

After the search was completed, Mantanona said there were a lot of follow-up investigations into items found at the governor’s ranch, including tiles, a water tank and generator. Mantanona said after extensive investigation, they found no evidence the items were purchased using airport or government of Guam money.

There were also 16 items listed on the search warrant, including tiles, blocks and light fixtures. Mantanona said despite all their best efforts, officers were unable to find the items and show that they were purchased using government funds.

Mantanona said the airport and its attorney, David Mair, didn’t cooperate with investigators, nor did at least two island businesses where items were purchased.

During re-direct, Mantanona said police could not tell whether Gutierrez had paid for any of the items. He said other investigators attempted to find out who purchased the items.

Media leak

Canavor also asked whether news about the warrant could have been released before it was executed.

"Do things like that leak out of the courtroom?" Canavor asked.

"Yes, sir," Mantanona said. He also said that the media was at the scene shortly after the warrant was executed.

During further questioning, Lujan asked whether Mantanona was aware of an internal police investigation of whether it was acting Police Chief Earl Aguigui who leaked information about the warrant to the media.

Canavor objected to the question and the judge asked attorneys to approach the bench. Mantanona did not answer the question.

But Lujan later asked Mantanona if he had any information that Aguigui had leaked the information.

"Sir, no sir," Mantanona said, adding he had no information as to the source of the leak.

Testimony not allowed

Acting Deputy Attorney General Gerad Egan also asked the judge to reconsider allowing certain testimony from Officer Kenneth Balajadia, who had driven Gutierrez to Urunao several times. Egan said Gutierrez told Balajadia to not just stand around but to use a jackhammer to remove coral at the ranch.

Cunliffe, however, said the statement "is irrelevant to the charges." Maraman denied the admission of the testimony.

July 6, 2004

Pacific Daily News: www.guampdn.com

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