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By Gina Tabonares

SAIPAN, CNMI (Marianas Variety, Feb. 1, 2008) –The pre-trial conference for the case of former Gutierrez chief of staff Gil Shinohara will continue this afternoon after a Superior Court judge denied two defense motions basically aimed at dismissing the indictment.

Shinohara is facing theft by deception and official misconduct originally filed in 2004 against former governor Carl Gutierrez and former Retirement Fund director John Rios in an allegation that the former public officials unlawfully conspired to inflate by $30,000 the Defined Benefits Retirement Fund annuity of Gutierrez.

The first of the two indictments pertaining to the Defined Benefits Plan of the Fund has been dismissed by Pro Tem Judge Richard Benson who ruled that the government prosecutor failed to establish that Gutierrez was not "privileged to infringe" upon the property of the Fund.

On Dec. 23, 2005, a month and a half after the court dismissed the charges against Rios and Gutierrez, a grand jury indictment was filed against the two including Shinohara.

On Feb. 9, 2006, the case dismissed all the 21-count indictments against Rios and Gutierrez leaving Shinohara alone in the theft charges.

Shinohara filed a motion to dismiss in May 2007, arguing that there was insufficient evidence to prove that a theft occurred.

The defense contended in his motion that the decision of Judge Benson constitutes a finding that no theft occurred therefore the grand jury could not have found sufficient evidence that a theft was committed.

The defendant also asked the court to prohibit the government from arguing or claiming or in any way referring to the alleged conduct of Gutierrez and Rios as illegal in nature citing the pro temp judge's ruling.

Assistant Attorney General William Bischoff countered that Judge Benson's rulings do not constitute evidence that no theft was committed and that the case never reached adjudication on the merits when the court dismissed the indictment without prejudice.

After reviewing both parties' statements and the grand jury transcript, Judge Arthur Barcinas issued a decision dated Jan. 28, 2007 denying the two motions of the defendant.

Judge Barcinas observed that Shinohara over-generalized the dismissal order of Judge Benson saying the judge "only found that the indictment was defective because it did not aver that Gutierrez had no entitlement to the funds."

The court said that Shinohara's findings that Rios and Gutierrez were not guilty of the charged theft is unsupported and Judge Benson's decision to dismiss without prejudice cannot constitute that no theft was committed or that Shinohara's actions were an authorized exercise of his official function.

Judge Barcinas added that the totality of the evidence presented to the grand jury was sufficient to constitute reasonable cause to believe that the crimes of theft and official misconduct were committed by Shinohara.

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