FORMER GUAM GOVERNOR FACES NEW INDICTMENT

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Court rules Gutierrez, Rios subject to renewed charges

By Dionesis Tamondong HAGATNA, Guam (Pacific Daily News, Jan. 1, 2010) – Former Gov. Carl Gutierrez and former Government of Guam Retirement Fund Director John Rios can be indicted for a second time in connection with the alleged retroactive signing of retirement benefits for the former governor, the Guam Supreme Court ruled Wednesday.

But Gutierrez's attorney said the Superior Court had already determined that prosecutors are unable to prove any laws have been violated. As well, witnesses in a related case testified Gutierrez was entitled to those benefits.

The high court had initially decided that the local government's refiling of the indictment did not amount to double-jeopardy. But Gutierrez and Rios asked for a rehearing.

On Wednesday, Chief Justice Robert Torres and Justices Pro Tempore Robert G.P. Cruz and Edward Manibusan denied the defendants' petition for a rehearing and reaffirmed their previous ruling.

The two defendants were initially indicted in July 2004 on charges of theft, conspiracy and official misconduct for allegedly scheming to alter Gutierrez's retirement status so he could collect more money from the Retirement Fund than he was entitled to receive.

But the Superior Court dismissed the indictment because the court found prosecutors couldn't prove Gutierrez received benefits "to which he was not privileged to infringe," nor could they cite a law that the former governor was not eligible for those retroactive benefits.

Justices noted that the dismissal was not related to actual guilt or innocence, but rather because the indictment failed to include all necessary elements of the crime of theft.

The lower court also dismissed the case without prejudice, meaning prosecutors were allowed to amend and refile the charges, the order stated.

The defendants were indicted again in December 2005, along with Gutierrez's chief of staff, Gil Shinohara.

A jury later found Shinohara not guilty of all charges against him while Gutierrez and Rios appealed their charges.

The Superior Court in 2006 dismissed the charges against Gutierrez and Rios, but the Supreme Court in 2008 ruled the dismissal was improper because the lower court misapplied a statute.

Gutierrez and Rios, in their petition to the high court, argued the charges in the second indictment were similar to the first indictment and violated Guam's double jeopardy law.

But justices, in their previous and recent orders, disagreed.

Attorney Randall Cunliffe, who represents Gutierrez, said Pro Tempore Judge Richard Benson had already determined that prosecutors could not establish that either Gutierrez or Rios had violated the law, and he was correct to dismiss the case.

When Shinohara was brought to trial, Cunliffe said the Superior Court determined the same thing and found him innocent.

"The government witnesses testified that Gutierrez was entitled to the retirement he was receiving and that others had done the same thing with their retirement," Cunliffe said.

"An indictment is merely an allegation. Since Retirement Fund personnel have already testified that Gutierrez was entitled to this retirement, any further prosecution in this matter would underscore the political nature of these proceedings," Cunliffe said. "Gov. Gutierrez will continue to fight these political attacks."

Gutierrez is running for governor in next year's elections with running mate Sen. Frank Aguon Jr.

Eric Palacios, spokesman for the attorney general's office, said the AG's office will review the decision thoroughly before discussing how it plans to move forward.

Gutierrez and Rios, in their petition to the high court, argued the charges in the second indictment were similar to the first indictment and violated Guam's double jeopardy law.

But justices, in their previous and recent orders, disagreed.

Attorney Randall Cunliffe, who represents Gutierrez, said Pro Tempore Judge Richard Benson had already determined that prosecutors could not establish that either Gutierrez or Rios had violated the law, and he was correct to dismiss the case.

When Shinohara was brought to trial, Cunliffe said the Superior Court determined the same thing and found him innocent.

"The government witnesses testified that Gutierrez was entitled to the retirement he was receiving and that others had done the same thing with their retirement," Cunliffe said.

"An indictment is merely an allegation. Since Retirement Fund personnel have already testified that Gutierrez was entitled to this retirement, any further prosecution in this matter would underscore the political nature of these proceedings," Cunliffe said. "Gov. Gutierrez will continue to fight these political attacks."

Gutierrez is running for governor in next year's elections with running mate Sen. Frank Aguon Jr.

Eric Palacios, spokesman for the attorney general's office, said the AG's office will review the decision thoroughly before discussing how it plans to move forward.

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