Former Governor Ralph Torres’ bank records are irrelevant to the Commonwealth government’s present case and charges against him, Judge Arthur Barcinas argued in a written order in Mr. Torres’ criminal case that quashes the government’s subpoena for those records to the Bank of Guam.
Special prosecutor James Kingman issued the subpoena in May, which Mr. Torres challenged days later. The subpoena was made under Rule 17c of the Commonwealth Rules of Criminal Procedure. “The U.S. Supreme Court has found that a subpoena under Rule 17(c) requires that all challenged subpoenas pass three hurdles: relevancy, admissibility, and specificity,” Mr. Barcinas wrote. “The Court does not need to address admissibility and specificity as this subpoena fails to clear the relevancy hurdle. To pass the relevancy hurdle, there should be a sufficient likelihood and a rational inference that the requested records relate to the offence charged.”
Sources close to the investigation into Mr. Torres tell Kandit Mr. Kingman has evidence against the former governor that conceivably will expand the charges against him in a possible superseding indictment. In order to bring those additional charges, the sources state, Mr. Kingman wants to bring the bank records to the grand jury.
It’s a classic Catch-22. “The bank records the Subpoena seeks are not relevant to the elements of the crimes that are currently charged in this matter,” Mr. Barcinas wrote.
“The Commonwealth has charged Defendant with Misconduct in Public Office, intending to prove that Defendant was: (1) a public official, (2) who completed an illegal act, (3) under the color office,” Mr. Barcinas wrote. “The illegal act the Commonwealth is asserting Defendant completed was violating the restrictions on government paid travel outside of the Commonwealth. To violate the restrictions on government paid travel outside of the Commonwealth, Defendant must have been (1) a government employee (2) who caused an airline ticketed to be issued, (3) for an airline ticket in first class, business class, or any other premium class designation above coach (4) during his travels for the government.”
“Judge Barcinas’ ruling clarifies how he interprets some of the procedural idiosyncrasies created by the unique structure of the CNMI and the singular nature of this case,” Mr. Kingman said. “I’m thankful for that guidance.”
“I will push a bill in the Senate to grant subpoena powers to the AGO, just like other jurisdictions,” Senator Celina Babauta of Saipan said. “We don’t have any laws in our books on this.”
The judge pointed out that – with regard to the charges currently before the court – the documents Mr. Kingman already has are sufficient to the prosecution’s case and arguments.
“Commonwealth’s Counsel has asserted in his declaration that he has obtained numerous check stubs, deposit slips, notices of overdraw for travel authorizations, receipts, and other documents concerning this case and he has determined that the documents did not match Defendant’s public statements,” Mr. Barcinas wrote. “The Declaration further asserts that he believes the records are relevant to showing if the appropriate protocols were followed and if the records match Defendant’s public representations. However, if the Commonwealth already has documents concerning Defendant’s transactions relating to the charges and Defendant’s public statements, then the only bank records that would be related to the charges can be directly identified by the records already within the Commonwealth’s possession.”
The judge emphasized repeatedly in his order – ironically premised on the U.S. Supreme Court case United States v. Richard Nixon – the prosecution’s burden to show probable cause if it wants to invade and obtain information in its desire to pursue additional charges.
“To investigate in search of illegal activity requires all the protections implicated by a search, including and most importantly, a determination of probable cause,” Mr. Barcinas wrote. “[The] subpoena is meant to be focused on the crimes already charged with probable cause in preparation for trial rather than gathering the evidence needed for an indictment, as is the purpose of a grand jury.
Judge Barcinas also clarified Mr. Kingman should not be investigating beyond the scope of his allowable prosecution of Mr. Torres. The special prosecutor was contracted on a special license to practice in the Commonwealth tailored to the Torres case.
“For Attorney Kingman to investigate into any possible financial misconduct on the part of Defendant goes beyond what has been charged in this particular case. Therefore, as the Subpoena goes beyond what is charged in this case as identified above, when Attorney Kingman requested the Subpoena to be issued, he went beyond the boundaries of his pro hac vice admission,” Mr. Barcinas wrote. “As such, the Subpoena should also be quashed on these grounds.”
1 Comments
elkapitan
07/18/2023 at 10:41 AM
It would seems that this is another attempt to shield Ralphy and his co-conspirators by this off island Judge as has been shown by all of the CNMI judges have recused themselves.
In another front, involving bank accounts, the Feds uncovered much from Hunter Biden’s bank records that linked about 11 shell companies to the Biden’s including, “the big man” (Joe) while he was vice president (and now) along with about 9 member of the Biden family and multi millions paid from china and other countries.
This along with FBI and DOJ cover ups and refusal from the FBI director to give up requested documents along with tax evasion charges etc..
So what is the difference in going after bank accounts, it is common along with looking at life style changes.