REPUBLIC OF THE PHILIPPINES
SANDIGANBAYAN
Quezon City
SPECIAL DIVISION
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus -
CRIM. CASE NO. 26558
JOSEPH EJERCITO ESTRADA,
ET AL.,
Accused.
x----------------- - - x
MOTION FOR RECONSIDERATION
------------------ACCUSED Pres. Joseph Ejercito Estrada, through the
undersigned
counsel,
respectfully
moves
for
the
reconsideration of the Decision of the Honorable Court dated
September 1, 2007 on the following grounds:
GROUNDS FOR RECONSIDERATION
I.
MISTRIAL:
THE ACCUSED PRES.
ESTRADA WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO DUE
PROCESS AND TO BE INFORMED OF
THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM.
II.
THE
ACCUSED
WAS
LIKEWISE
DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO BE INFORMED WHEN HE
WAS CONVICTED OF AN OFFENSE
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 2 –
x---------------------------------------------------x
NOT
INCLUDED
INFORMATION.
IN
THE
III. NOT ACCUSED, BUT OTHERS, DID
“AMASS,
ACCUMULATE,
OR
ACQUIRE”
ILL-GOTTEN
WEALTH
UNDER SUBPARAGRAPH (A) AND (C)
OF THE AMENDED INFORMATION.
IV. THE ACCUSED PRES. ESTRADA WAS
DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO
CONFRONT WITNESSES
AGAINST
HIM
WHEN
HEARSAY
EVIDENCE
AGAINST
HIM
WAS
ADMITTED.
V.
THE ACCUSED PRES. ESTRADA WAS
DENIED HIS CONTITUTIONAL RIGHT
TO PRESUMPTION OF INNOCENCE AS
THE COURT CONVICTED HIM ON THE
BASIS OF SURMISES, INFERENCES
AND SPECULATIVE EVIDENCE.
DISCUSSION
I. MISTRIAL:
THE ACCUSED PRES.
ESTRADA WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO DUE
PROCESS AND TO BE INFORMED OF
THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 3 –
x---------------------------------------------------x
Under the Court’s decision,
the Accused was burdened
four times heavier than the
Prosecution, in violation of
due process.
When arraigned, and throughout the trial, up to the time
the “Decision” was promulgated on September 12, 2007, the
accused
believed
and
understood
that
the
“Amended
Information”, dated April 18, 2001, charges him of a SINGLE,
or ONE, offense of Plunder committed in the manner alleged
in the Amended Information.1
He understood that the Amended Information accuses
him, together with Jose ‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane
Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the
crime of Plunder, defined and penalized under R.A. No. 7080,
as amended by Sec. 12 of R.A. No. 7659, that during the
period from June 1998 to January 2001, he did then and there
1
Section 13, Rule 110, Rules of Court provides as follows:
SEC. 13. Duplicity of the Offense. – A complaint or information must
charge only one offense, except when the law prescribes a single punishment
for various offenses.
He moved to quash the information on the ground of duplicity, which the Court denied. The
assumption must be, as the accused had assumed, that the “Amended Information”, crafted
and signed by a select group of prosecutors, conformed to the Rule.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 4 –
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a)
x x x “willfully, unlawfully and criminally
AMASS, ACCUMULATE AND ACQUIRE* by himself,
directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of Four Billion
Ninety Seven Million Eight Hundred Four Thousand
One Hundred Seventy Three Pesos and Seventeen
Centavos [P4,097,804,173.17], more or less, thereby
unjustly enriching himself or themselves at the
expense and to the damage of the Filipino people
and the Republic of the Philippines x x x;
b)
That he did so (i.e., amass, accumulate
and acquire ill-gotten wealth) THROUGH ANY OR A
COMBINATION OR A SERIES OF OVERT OR
CRIMINAL ACTS, OR SIMILAR SCHEMES OR
MEANS;*
c)
That the overt or criminal acts through
which
he
AMASSED,
ACCUMULATED
and
ACQUIRED* ill-gotten wealth are the following:
*
Emphasis ours.
(a)
by receiving OR collecting,
directly or indirectly, on several
instances,
money
in
the
aggregate amount of Five
Hundred Forty-five Million
Pesos (P545,000,000.00), more
or less, from illegal gambling
in the form of gift, share,
percentage, kickback or any
form of pecuniary benefit, by
himself and/or* in connivance
with co-accused Charlie ‘Atong’
Ang, Jose ‘Jinggoy” Estrada,
Yolanda T. Ricaforte, Edward
Serapio, and John Does and
Jane Does, in consideration of
toleration or protection of
illegal gambling;*
(b)
by
diverting,
receiving,
misappropriating, converting
or
misusing*
directly
or
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 5 –
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indirectly, for his or their
personal gain and benefit,
public funds* in the amount of
ONE
HUNDRED
THIRTY
MILLION
PESOS
[P130,000,000.00], more or less,
representing a portion of the
Two Hundred Million Pesos*
[P200,000,000.00]
tobacco
excise tax share allocated* for
the Province of Ilocos Sur under
R.A. No. 7171, by himself
and/or in connivance with coaccused Charlie ‘Atong’ Ang,
Alma Alfaro, John Doe a.k.a.
Eleuterio Tan or Eleuterio
Ramos Tan or Mr. Uy, and Jane
Does a.k.a. Delia Rajas, and
other John Does and Jane Does;
(c) by directing, ordering and
compelling, for his personal
gain
and
benefit,*
the
Government Service Insurance
System (GSIS) to purchase,
351,878,000 shares of stocks,*
more or less, and the Social
Security
System
(SSS),
329,855,000 shares of stock,
more or less, of the Belle
Corporation in the amount of
more or less One Billion One
Hundred Two Million Nine
Hundred Sixty Five Thousand
Six Hundred Seven Pesos and
Fifty
Centavos
[P1,102,965,607.50] and more
or less Seven Hundred Fortyfour Million Six Hundred Twelve
Thousand and Four Hundred
Fifty Pesos (P744,612,450.00),
respectively, or a total of more or
less One Billion Eight Hundred
Forty
Seven
Million
Five
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 6 –
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Hundred
Seventy
Eight
Thousand Fifty Seven Pesos and
Fifty
Centavos
(P1,847,578,057.50); and by
collecting
or
receiving,
directly or indirectly, by
himself and/or in connivance*
with John Does and Jane Does,
commissions or percentages*
by reason of said purchases of
shares of stock in the amount of
One Hundred Eighty Nine
Million
Seven
Hundred
Thousand Pesos [P189,700,000],
more or less, from the Belle
Corporation* which became
part of the deposit in the
Equitable –PCI Bank under the
account name “Jose Velarde”;
(d) by unjustly enriching himself
from
commissions,
gift,
shares,
percentages,
kickbacks, or any form of
pecuniary
benefits,*
in
connivance with John Does and
Jane Does, in the amount of
more or less THREE BILLION
TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND
SEVENTEEN
CENTAVOS
[P3,233,104,173.17]
and
depositing the same under his
account name “Jose Velarde”
at the Equitable-PCI Bank.*
He never knew or understood that each of the acts
distinctly described in sub-paragraphs (a), (b), (c) and (d) of the
information constituted an offense of plunder; he understood
the “overt or criminal acts or similar schemes or means”
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 7 –
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described separately in sub-paragraphs (a), (b), (c) and (d) as
the means through which he did “willfully, unlawfully and
criminally AMASS, ACCUMULATE AND ACQUIRE” ill-gotten
wealth. For, indeed, the Amended Information alleges that he,
together with his co-accused did ―
“willfully, unlawfully and criminally AMASS,
ACCUMULATE AND ACQUIRE by himself, directly
or indirectly, ill-gotten wealth . . . THROUGH* any
or a combination or a series of overt or criminal
acts, or similar schemes or means . . .”
But the Court, in its “Decision” of September 12, 2007, found
him guilty for the following reasons:
After a thorough evaluation of the established
facts, we hold that the prosecution has proven
beyond reasonable doubt the elements of plunder as
follows:
(a) The principal accused Joseph
Ejercito Estrada, at the time of the
commission of the acts charged in the
Amended Information was the President
of the Republic of the Philippines;
(b) He acted in connivance with
then Governor Luis “Chavit” Singson, who
was granted immunity from suit by the
Office of the Ombudsman, and with the
participation of other persons named by
prosecution witnesses in the course of the
trial
of this
case, in
amassing,
accumulating and acquiring ill-gotten
wealth as follows:
(i)
by a series of acts
of
receiving*
bi-monthly
collections from “jueteng”, a
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 8 –
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form of illegal gambling, during
the period beginning November
1998 to August 2000 in the
aggregate amount of Five
Hundred Forty Five Million Two
Hundred Ninety One Thousand
Pesos (P545,291,000.00), Two
Hundred
Million
Pesos
(P200,000,000.00) of which
was deposited in the Erap
Muslim Youth Foundation; and
(ii) by
a
series
consisting of two (2) acts* of
ordering the GSIS and the SSS
to purchase shares of stock of
Belle
Corporation
and
collecting
or
receiving
commission from the sales of
Belle Shares in the amount of
One Hundred Eighty Nine
Million
Seven
Hundred
Thousand
Pesos
(P189,700,000.00) which was
deposited in the Jose Velarde
account.
xxx
xxx
xxx
This Court finds that the prosecution failed to
prove, beyond reasonable doubt, who among the
accused benefited from the misappropriation of the
excise tax share of Ilocos Sur and in what amounts,
as charged sub-paragraph b.
The prosecution
likewise failed to offer evidence on the alleged illegal
sources of the numerous deposits in the Jose
Velarde account which belongs to FPres. Estrada,
except for the commission received from the
sale of Belle shares to GSIS and SSS and the
money collected from illegal gambling.*
The
Anti-Plunder Law requires the prosecution to prove
the series or combination of overt or criminal acts
through which ill-gotten wealth deposited in the
Jose Velarde account was amassed, accumulated or
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 9 –
x---------------------------------------------------x
acquired. The prosecution failed to discharge this
burden of proof.
However, the two different series of
predicate acts outlined above* (particularly, first,
the regular and methodical acquisition of ill-gotten
wealth through collections from illegal gambling and
second, the receipt of unlawful commissions from
the sales of Belle shares twice), whether taken
separately or independently of the other or in
combination with each other, unquestionably
constitute the crime of plunder* as defined by
Section 2 in relation to Section 1(d) of RA 7080 as
amended.
xxx
xxx
xxx
A pattern was established by the carefully
planned system of jueteng money collection on a
regular bi-monthly basis from the different
provinces nationwide to enrich FPres. Estrada with
the connivance and/or participation of Gov.
Singson, Yolanda Ricaforte, Emma Lim, Carmencita
Itchon, SPO2 Artates, Jamis Singson and other
jueteng collectors referred to in the Amended
Information as “John Does” and “Jane Does.” The
Court notes that Gov. Singson in the course of his
testimony mentioned certain persons who collected
jueteng money aside from himself and his
employees; namely, Anton Prieto, Bonito Singson,
Bong Pineda, Charing Magbuhos, Celso De Los
Angeles, Jesse Viceo, Romy Pamatmat and a certain
Sanchez of Batangas. As proven, the collections in
“several instances” from illegal gambling money
went way beyond the minimum of P50,000,000.00
set by the Anti-Plunder Law.
These repeated
collections of jueteng money from November
1998 to August 2000 would fall within the
purview of a “series” of illegal acts constituting
plunder. The said series of acts, on its own,
would have been sufficient to convict the
principal accused, FPres. Estrada. However, this
Court also finds that FPres. Estrada is criminally
liable for plunder for receiving commissions
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 10 –
x---------------------------------------------------x
from the purchase of Belle Shares by the GSIS
and by the SSS in grave abuse of his power of
two (2) separate occasions as charged in subparagraph (b) of the Amended Information.
Clearly, the receipt of these commissions on two
(2) occasions likewise meets the definition of a
series of two (2) similar unlawful acts employing
the same scheme to accumulate ill-gotten
wealth.*
It is unnecessary to indulge in an exposition of
whether the two series of acts falling under subparagraphs (a) and (c) of the Amended Information,
proven in the course of the trial could have
amounted to two (2) counts of plunder. It would be
a purely academic exercise, as the accused cannot
be convicted of two offenses or two counts of
plunder on the basis of a single information, clearly
charging him of only one count of plunder,*
because that would violate his constitutional rights
to due process, given the severity of the crime
charged in this case.
The predicate acts alleged in sub-paragraphs
(a) and (c) of the Amended Information, which
formed two (2) separate series of acts of a different
nature, were linked by the fact that they were
plainly geared towards a common goal which was
the accumulation of ill-gotten wealth for FPres.
Estrada and that they shared a pattern or a
common method of commission which was the
abuse or misuse of the high authority or power
of the Presidency.* (U.S. v. Hiverly, 437 F3d 752)
In sum, the Court finds that prosecution has
proven beyond reasonable doubt the commission by
the principal accused former President Joseph
Ejercito Estrada of the crime of plunder but not so
in the case of former Mayor Jose Jinggoy Estrada
and Atty. Edward Serapio.
(At pp. 205-208)
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 11 –
x---------------------------------------------------x
In other words, instead of the acts described in subparagraphs (a) and (c) of the Amended Information, being
considered as distinct predicate acts, and consequently
requiring that the acts described in sub-paragraph (a) and
those described in sub-paragraph (c) constitute a “series” or a
“combination”,
the
Court
considered
the
acts
in
sub-
paragraphs (a) and (c) as constituting separately a “series” or
“two (2) series of acts”, each one an offense of plunder, rather
than those acts described in sub-paragraph (a) constituting by
themselves a predicate act, and similarly those described in
sub-paragraph (c).
As it has now turned out, with the Court’s view of the
Amended Information, that an offense of plunder is charged in
sub-paragraph (a), and another in sub-paragraph (c), and
possibly, also in sub-paragraph (b), and still another in subparagraph (d), the Amended Information charges the accused
of four (4) offenses of plunder.
It does not matter that the
Court acknowledged:
It is unnecessary to indulge in an exposition of
whether the two series of acts falling under subparagraphs (a) and (c) of the Amended Information,
proven in the course of the trial could have
amounted to two (2) counts of plunder. It would be
a purely academic exercise, as the accused cannot
be convicted of two offenses or two counts of
plunder on the basis of a single information, clearly
charging him of only one count of plunder, because
that would violate his constitutional rights to due
process, given the severity of the crime charged in
this case.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 12 –
x---------------------------------------------------x
(Decision, at p. 208)
The fact is that with the Court’s view, the accused was, under
the Amended Information, placed in jeopardy of being found
guilty of plunder should the prosecution prove one (1) of the
four (4) offenses charged.
Considering that the penalty is
reclusion perpetua, it is of no significance whether he is found
guilty of one, two, three or four offenses of plunder; the fact is,
the prosecution need only prove one of four offenses charged
in a single information.
Upon the other hand, to obtain
acquittal, the defense need to bring about failure of the
prosecution to prove all of the four (4) offenses of plunder
charged.
When the accused pleaded and underwent trial, the
accused was completely unaware that his burden was four (4)
times heavier that of the prosecution. Nothing, absolutely
nothing, could be more unfair and repugnant to all rules of
criminal procedure.
There has been a mistrial ― clear and incontrovertible,
adequate to vacate the judgment of the Court.
The Court, of course, ruled:
The predicate acts alleged in sub-paragraphs
(a) and (c) of the Amended Information, which
formed two (2) separate series of acts of a different
nature, were linked by the fact that they were
plainly geared towards a common goal which was
the accumulation of ill-gotten wealth for FPres.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 13 –
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Estrada and that they shared a pattern or a
common method of commission which was the
abuse or misuse of the high authority or power
of the Presidency.* (U.S. v. Hiverly, 437 F3d 752)
(Decision, at page 206)
It is respectfully submitted that the linkage of predicate
acts so that they would constitute a “combination” or a “series”
cannot simply be a common beneficiary of the acts, rather
than their nature, time of commission, and like circumstances;
otherwise, to constitute plunder it would have been totally
unnecessary to speak of “combination”, or “series”, or
“pattern”; rather, the law could have simply provided that the
commission of more than one offense resulting in the
accumulation or acquisition of more than Fifty Million Pesos
(P50,000,000.00) would constitute plunder.
II. THE
ACCUSED
WAS
LIKEWISE
DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO BE INFORMED WHEN HE
WAS CONVICTED OF AN OFFENSE
NOT INCLUDED IN THE INFORMATION
It was error to convict
accused of plunder under an
Information
that
merely
alleges his “taking
undue
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 14 –
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advantage
position”
of
his
official
The Amended Information in this case charged the
accused Pres. Estrada with violation of R.A. 7080 as follows:
AMENDED INFORMATION
The undersigned
Ombudsman Prosecutor and OICDirector, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito
Estrada a.k.a. “ASIONG SALONGA” and
a.k.a.
“JOSE
VELARDE”, together with Jose ‘Jinggoy’ Estrada, Charlie
“Atong” Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized
under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to
January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PUBLIC
OFFICER, BEING THEN THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by himself
AND/OR in CONNIVANCE/CONSPIRACY with his
co-accused, did then and there willfully, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY
OR
CONSANGUINITY,
BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER
PERSONS, BY TAKING UNDUE ADVANTAGE OF
HIS
OFFICIAL
POSITION,
AUTHORITY,
RELATIONSHIP, CONNECTION, OR INFLUENCE,
unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY,
ill-gotten wealth in the aggregate amount OR
TOTAL VALUE of FOUR BILLION NINETY SEVEN
MILLION EIGHT HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 15 –
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SEVENTEEN
CENTAVOS
(P4,097,804,173.17),
more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE
AND TO THE DAMAGE OF THE FILIPINO PEOPLE
AND THE REPUBLIC OF THE PHILIPPINES,
through ANY OR A combination OR A series of
overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:
(a) by receiving OR collecting directly or indirectly
on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN
THE FORM OF
GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT BY HIMSELF AND/OR in connivance
with co-accused CHARLIE ‘ATONG’ ANG, JOSE
‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward
Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING.
No
proof
that
accused
tolerated illegal gambling
Since the allegation was
that the alleged receipt of
jueteng money was “in consideration of toleration
or
protection of illegal gambling,” there was a need to prove the
same since “in toleration or protection of illegal gambling” is
an element of the crime of plunder such that without it the
crime could not be committed.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 16 –
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Yet
nowhere
in
the
Prosecution is there any
lengthy
evidence
Information alleges as “in
presentation
of
what
the
of
the
Amended
consideration of toleration or
protection of illegal gambling.”
The
Decision of the
Honorable Court thus does not contain any
finding that
accused Pres. Estrada tolerated or protected any gambling
activity.
In fact, both the Prosecution and the Defense
evidence show that Pres. Estrada had
wanted to eradicate
jueteng by replacing it with Bingo 2-Balls.
Bingo 2-Balls,
which under the proposal, would have been legal gambling
conducted by the PAGCOR.
Assuming , only for the sake of argument, that the
evidence presented by the prosecution is worthy of credence
in some of its parts, the offense held to have been proven by
the Honorable Court, which is receiving part of jueteng
proceeds from Chavit Singson, is not included in the charge
of plunder. In other words, there is a variance between the
offense charged, i.e.,
bribery, and the
offense proved, i.e.,
receiving jueteng proceeds.
The law against plunder specifies, as one of the means or
schemes by which an accused amasses or accumulates ill-
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 17 –
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gotten wealth, “by receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks, or any other
form of pecuniary benefit from
any person or entity in
connection with any government contract or project or by
reason of the office of position of the public officer concerned.”2
With regard to the predicate subparagraph (a) in the Amended
Information, there is no doubt that this subparagraph tries to
make out a
case
subparagraph (a)
for bribery. That explains why the
specifies that the
gambling” was received
money “from illegal
or collected “in consideration of
toleration or protection of illegal gambling”. And even the
Justices of the Supreme Court who rendered written opinions
in Jose Estrada v. Sandiganbayan3 say so.
The majority
opinion penned by Justice Puno refers to subparagraph (a) as
“the predicate act of receiving, on several instances, money
from illegal gambling, in consideration of toleration or
protection of illegal gambling”.4 The
dissenting
opinions
likewise treat of subparagraph (a) as amounting to bribery.5
2
R.A. 7080, sec. 1(d).
377 SCRA 538 (2002).
4
377, SCRA at p. 553.
5
377, SCRA at p. 602.
3
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 18 –
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Yet nowhere in the Decision, and even in the Prosecution’s
evidence, is there any
jueteng
hint of toleration or protection of
as a consideration for all of the money collected by
Chavit Singson.
To the contrary, the witness testified that
when he brought the money at first to General Lastimoso, the
Chief of the PNP, the latter refused to receive the money.6
Clearly, the Prosecution failed to prove this element of the
crime of plunder alleged in the Information.
Failure to allege in the
Information the element of
“by reason of his public
office” precluded conviction
for Plunder
The various Informations did not include any allegation
of “by reason of his public office”. Certainly, in the Amended
Information admitted on April 20, 2001, its par. (a) did not
contain any such qualifying circumstance which would have
upgraded the offense to plunder.
The phrase “by reason of his office or position” is not
as broad as the phrase “in relation to the Office” which is
used in the Anti-Graft and Corrupt Practices Act. But if the
6
Decision, p. 21.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 19 –
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former is considered as having the same meaning as the latter,
then the subject Information should at least have alleged
what the law requires rather than the allegation of “taking
undue advantage of his office” as:
The allegation of “taking advantage of his
position” or “taking advantage of their respective
positions” incorporated in the informations is not
sufficient to bring the offense within the definition
of “offenses committed in relation to public office.”
Xxx.7
and to satisfy the requirement that the accused must be fully
apprised of the crime he is accused of as having been
committed in relation to this office, the
(i)ntimate relation between the offense charged and
the discharge of official duties must be alleged in
the information.8
Neither
is the allegation that accused received jueteng
money “in consideration of toleration or protect of illegal
gambling” equivalent to an allegation that the alleged receipt
of jueteng money was “by reason of his office.”
The phrase “in consideration
of toleration or protection
of illegal gambling” does not indicate a close intimacy between
7
8
People vs. Magallanes, 249 SCRA 212, 223 (1995).
Lacson vs. Executive Secretary, 301 SCRA 298 (1998).
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 20 –
x---------------------------------------------------x
the discharge of Erap’s
commission
official duties as President and the
of plunder by receipt of jueteng money
since
toleration or protection of illegal gambling could be done even
by one who does not have a public office. Indeed, even the
Catholic Church could be said to tolerate or
protect illegal
gambling if it keeps quiet about it instead of condemning it.
Since an offense is committed in relation to a public
office only if it is essential to the crime such that it could not
have been committed had the accused not held public office,
the allegation
that the receipt of jueteng money was “in
consideration of toleration or
protection of illegal gambling”
therefore does not show that public office was an essential
element to the crime of
receiving
jueteng money, since as
already stated, other persons, whether in the public or private
sector, could tolerate or protect illegal gambling and receive
jueteng money in consideration therefor.
Some observers have said it is wrong to argue that taking
private money is not plunder, and cite Sec. 1 (2) of R.A. No.
7080.
But, as to the alleged jueteng money, assuming the
source is proved, which is not conceded to be the case, the
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 21 –
x---------------------------------------------------x
money must be alleged to have been received “by reason of the
office or position of the public officer concerned”.
Such
qualifying circumstance was not alleged in the Information
and cannot be proved qua such circumstance in the trial and
taken against the accused in the judgment.
If a poor public
official gets so much a month from say his very rich mother, or
godfather, classmates or circle, to sustain himself and his
good projects, would there be plunder there? There must be
something sinister.9
What was alleged was “in consideration of TOLERATION
OR PROTECTION OF ILLEGAL GAMBLING”, on which there
was also a total lack or paucity of evidence.
But, such
toleration or protection is not necessarily by reason of one’s
public office, as practiced for instance by the Mafia as an
example of a criminal syndicate or the village bully. Proof of
an allegation cannot be dispensed with.
On the source of money, the alleged jueteng bets did not
form part of the public treasury.
9
The bettors in jueteng
When one of the undersigned was in the Senate without a government-issue vehicle, a cousin
and two friends lent three cars to his staff and his office to enable them to function optimally.
Did he commit a crime?
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 22 –
x---------------------------------------------------x
should have testified that they bet a few pesos now and then,
here and there. But, not a single bettor was presented. Some
jueteng lords needed to testify but not one did so either.
Governor Luis “Chavit” Singson cannot do it because he
obviously has many sources of income, such as the excise tax
money which led him into trouble with the Commission on
Audit. When he was reported during the last elections to be
giving a lot of money, of which judicial notice may be taken, no
one can really tell what its source was, given his vast wealth,
whose sources continue to be a source of awe and speculation,
given his effort of redistribution of wealth during the elections
when he lost badly (hardly enhancing his credibility in the
eyes of the people).
Singson fought movant because precisely he did not want
to lose his jueteng franchise. Who would believe today that he
has lost it? The supposed possibility of losing said franchise
he said led him to break with President Estrada, who he had
supposedly thought had wanted him killed.
Jueteng was probably not what the lawmaker had in
mind in talking of reclusion perpetua or death as the penalty
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 23 –
x---------------------------------------------------x
for no one is scandalized by it otherwise it would not be so
widespread today, more than ever. Graft or some such maybe
but plunder? No one can take seriously any suggestion that
the legislator ever intended that anyone linked to jueteng
could be sentenced to death or life sentence in a society where
big time gambling is sponsored by government. More so when
movant is said to have gotten P200-M comprising spendable
money and instead of spending it, put it in a bank for use by a
corporation created and run by respected personages to pick
young Muslims for scholarships.
Was this the legislative
intent?
Indeed, there has not been any condemnation or
ostracism of the principal accused.10
Therefore, accused Pres. Estrada cannot be convicted
under this subparagraph (a), otherwise this would violate his
right to be informed of the nature and cause of the accusation
against him. An accused can be convicted of an offense only
10
When we met to strategize last September 15 in Tanay, Cardinal Vidal was there, along with
Senator Mar Roxas and Atty. J. V. Bautista, Secretary Titoy Pardo, et al., followed by the likes of
Sec. Norberto Gonzales. Here in court, his high school classmates and Cabinet members often
attended. This is not what the law had in mind.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 24 –
x---------------------------------------------------x
when it is both charged and proved.
If it is not charged
although proved, or if it is not proved although charged, the
accused cannot be convicted.11
In other words, variance
between allegation and proof cannot justify
conviction
for
either the offense charged or the offense proved, unless either
is included in the other.12
In the absence of evidence of toleration of gambling, the
accused cannot be convicted of plunder for the other element
of the offense, as alleged in the Information, i.e., “thereby
unjustly enriching himself or themselves at the expense
and to the damage of the Filipino people and the Republic
of the Philippines,” cannot be met.
This is because all of
the funds collected by the principal witness allegedly from
jueteng operators, as described here under subparagraph (a),
are private funds, that is, proceeds from private persons
operating
gambling
joints.
Without
consideration, it is incongruous to speak
any
of “expense and
damage of the Filipino people and the Republic.”
11
12
Esguerra v. People, 108 Phil. 1078, 1084-85.
Ibid.
unlawful
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 25 –
x---------------------------------------------------x
III. NOT ACCUSED, BUT
“AMASS, ACCUMULATE
ILL-GOTTEN WEALTH
PARAGRAPH (A) &
INFORMATION.
OTHERS, DID
OR ACQUIRE”
UNDER SUB(C) OF THE
Alleged co-conspirators who
collected the money not
included in Information
As defined in Sec. 2 of R.A. 7080, the constitutive acts of
the
crime
of
Plunder
are
the
acts
of
“AMASSING,
ACCUMULATING OR ACQUIRING” ill-gotten wealth.
The various acts described in Section 1(d), which must
constitute a “combination or series of overt or criminal acts”
are but the means through which the constitutive acts of
plunder,
that
of
“AMASSING,
ACCUMULATING
ACQUIRING” ill-gotten wealth, are committed.
As the accused has described in his “Memorandum” ―
What then are the elements of “plunder” as
defined in Republic Act No. 7080? As best as we are
able, how the “common world” will understand R.A.
No. 7080, the elements of the offense are the
following:
a.
The offender must be a public
officer as defined in Section 1(a).
OR
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 26 –
x---------------------------------------------------x
Note:
This is clear enough.
No
dispute may arise as to the element.
That this element is met is conceded.
b.
He amasses, accumulates or
acquires “ill-gotten wealth.”
Note: These are the principal “act”
requirements.
The accused must
“amass, accumulate, or acquire” the
wealth.
Mere showing that the
accused has “wealth” does not meet
this requirement. The objective “act”
requirements of the offense are the
acts of “amassing, accumulating or
acquiring” the wealth.
Webster13 defines these words as follows:
Acquire
Acquired
Acquirin
g
1 : to get* as one's own: a : to
come
into
possession
or
control* of often by unspecified
means b : to come to have as a
new or added characteristic,
trait, or ability (as by sustained
effort or natural selection)
acquire fluency in French>
<bacteria that acquire tolerance
to
antibiotics>
2 : to locate and hold (a desired
object) in a detector <acquire a
target by radar>
Accumul : to gather or pile up* especially
ate
little by little* : AMASS
<accumulate a fortune> : to
increase gradually in quantity or
number
Amasses 1 : to collect* for oneself :
ACCUMULATE <amass a great
13
Merriam Webster’s Collegiate Dictionary,Tenth Edition, pp. 8, 10 and 35.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 27 –
x---------------------------------------------------x
fortune> 2 : to collect into a
mass : GATHER <must select
rather than
simply
amass
details> intransitive verb: to
come
together:
ASSEMBLE
In the context of their use in R.A. No. 7080,
taking account especially the “mens rea”
requirement, the accused must be shown to have
committed the acts of acquisition, i.e., to “get,” to
“gather,”
to
“collect,”
deliberately
and
intentionally.
xxx
xxx
xxx
(At pp. 26-29)
It is obvious, and must be emphasized, that the acts of
“AMASSING, ACCUMULATING OR ACQUIRING” involve a
positive act of the accused of getting or coming into
possession or control of the “ill-gotten wealth” from its
owner.
Applied to the instant case, particularly as to the
predicate act described in sub-paragraph (a), the act of
“amassing, accumulating or acquiring” consists of “receiving”
or “collecting” the aggregate amount of Five Hundred Forty
Five Million Pesos (P545,000,000.00) from those engaged in
“illegal gambling” in “consideration of toleration or protection
of
illegal
gambling”.
And
who
did
the
“amassing,
accumulating or acquiring” ill-gotten wealth by “receiving”
or “collecting” jueteng money? The Court, in its “Decision”,
answers the question, thus:
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 28 –
x---------------------------------------------------x
x x x The Court notes that Gov. Singson in the
course of his testimony mentioned certain persons
who collected jueteng money aside from himself
and his employees;* namely, Anton Prieto, Bonito
Singson, Bong Pineda, Charing Magbuhos, Celso de
los Angeles, Jesse Viceo, Romy Pamatmat and a
certain Sanchez of Batangas. x x x
xx x
(At pp. 207-208)
It likely would be suggested, and apparently it is on this
basis, that the Court found that accused has committed what
is alleged in sub-paragraph (a) of the Amended Information,
because:
xxx
xxx
xxx
(b) He acted in connivance with
then Governor Luis “Chavit” Singson,*
who was granted immunity from suit by
the Office of the Ombudsman, and with
the participation of other persons
named by prosecution witnesses in the
course
of
the
trial* of this case, in AMASSING,
ACCUMULATING AND ACQUIRING ILLGOTTEN WEALTH* as follows:
(i)
by a series of acts of
receiving bi-monthly collections
from “jueteng”, a form of illegal
gambling, during the period
beginning November 1998 to
August 2000 in the aggregate
amount of Five Hundred Forty
Five Million Two Hundred
Ninety One Thousand Pesos
(P545,291,000.00),
Two
Hundred
Million
Pesos
(P200,000,000.00) of which
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 29 –
x---------------------------------------------------x
was deposited in the Erap
Muslim Youth Foundation; and
xxx
xxx
xxx
(At p. 205 & 206)
There can be no mistake in the instant case. Governor
Singson, and the others who collected jueteng money, or who
performed
the
constitutive
act
of
“AMASSING,
ACCUMULATING, or ACQUIRING” ill-gotten wealth, are not
alleged in the Amended Information as co-conspirators of
accused Estrada. On the contrary, the Amended Information
names explicitly those who acted in conspiracy with him ―
As to the entire offense:
x x x together with Jose ‘Jinggoy’
Estrada,
Charlie
“Atong”
Ang,
Edward
Serapio,
Yolanda
T.
Ricaforte, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan or Eleuterio
Ramos Tan or Mr. Uy, Jane Doe
a.k.a. Delia Rajas, and John Does &
Jane Does x x x
xxx
As to sub-par. (a), particularly:
(a)
x x x in connivance with coaccused Charlie “Atong” Ang,
Jose
“Jinggoy”
Estrada,
Yolanda T. Ricaforte, Edward
Serapio, and John Does and
Jane
Does
xxx
xxx
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 30 –
x---------------------------------------------------x
The names “Gov. Singson”, “Anton Prieto”, “Bonito Singson”,
“Bong Pineda”, “Charing Magbuhos”, “Celso de los Angeles”,
“Jesse Viceo”, “Romy Pamatpat” and a certain “Sanchez” of
Batangas who, according to the Court “collected jueteng
money”14 are not among those named in the information with
whom accused Estrada conspired in “receiving” or “collecting”
money from illegal gambling.
In People vs. Quitlong, 292 SCRA 360 (1998),15 the
Supreme Court, ruled as follows:
Overwhelming, such as it may have been
thought of by the trial court, evidence of
conspiracy is not enough for an accused to bear
and to respond to all its grave legal consequences; it is equally essential that such accused
has been apprised when the charge is made
conformably with prevailing substantive and
procedural requirements.* Article III, Section 14, of
the 1987 Constitution, in particular, mandates that
no person shall be held answerable for a criminal
offense without due process of law and that in all
criminal prosecutions the accused shall first be
informed of the nature and cause of the accusation
against him. The right to be informed of any such
indictment is likewise explicit in procedural rules.
The practice and object of informing an accused in
writing of the charges against him has been
explained as early as the 1904 decision of the Court
in U.S. vs. Karelsen; viz.:
“First. To furnish the accused with
such a description of the charge against
him as will enable him to make his
defense; and second, to avail himself of
his conviction or acquittal for protection
against a further prosecution for the
14
15
At pp. 207-208, Decision.
Cited in Estrada vs. Sandiganbayan, 377 SCRA 538 (2002), at pp. 563-565.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 31 –
x---------------------------------------------------x
same cause; and third, to inform the
court of the facts alleged, so that it may
decide whether they are sufficient in law
to support a conviction, if one should be
had. (United States vs. Cruikshank, 92
U.S. 542). In order that this requirement
may be satisfied, facts must be stated,
not conclusions of law. Every crime is
made up of certain acts and intent; these
must be set forth in the complaint with
reasonable particularity of time, place,
names (plaintiff and defendant), and
circumstances. In short, the complaint
must contain a specific allegation of every
fact and circumstances necessary to
constitute the crime charged.”
An information, in order to ensure that the
constitutional right of the accused to be informed of
the nature and cause of his accusation is not
violated,
must
state
the
name of the accused; the designation given to the
offense by the statute; a statement of the acts or
omissions so complained of as constituting the
offense; the name of the offended party; the approximate time and date of the commission of the
offense; and the place where the offense has been
committed. In embodying the essential elements
of the crime charged, the information must set
forth the facts and circumstances that have a
bearing on the culpability and liability of the
accused so that the accused can properly
prepare for and undertake his defense. One such
fact or circumstance in a complaint against two
or more accused persons is that of conspiracy.*
Quite unlike the omission of an ordinary recital of
fact which, if not excepted from or objected to
during trial, may be corrected or supplied by
competent proof, an allegation, however, of
conspiracy, or one that would impute criminal
liability to an accused for the act of another or
others, is indispensable in order to hold such
person, regardless of the nature and extent of his
own participation, equally guilty with the other
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 32 –
x---------------------------------------------------x
or others in the commission of the crime.* Where
conspiracy exists and can rightly be appreciated, the
individual acts done to perpetrate the felony
becomes of secondary importance, the act of one
being imputable to all the others. Verily, an accused must know from the information whether
he faces a criminal responsibility not only for his
acts but also for the acts of his co-accused as
well.*
A conspiracy indictment need not, of course,
aver all the components of conspiracy or allege all
the details thereof, like the part that each of the
parties therein have performed, the evidence proving
the common design or the facts connecting all the
accused with one another in the web of the
conspiracy. Neither is it necessary to describe
conspiracy with the same degree of particularity
required in describing a substantive offense. It is
enough that the indictment contains a statement of
the facts relied upon to be constitutive of the offense
in ordinary and concise language, with as much
certainty as the nature of the case will admit, in a
manner that can enable a person of common
understanding to know what is intended, and with
such precision that the accused may plead his acquittal or conviction to a subsequent indictment
based on the same facts. It is said, generally, that
an indictment may be held sufficient “if it follows the
words of the statute and reasonably informs the
accused of the character of the offense he is charged
with conspiring to commit, or, following the language of the statute, contains a sufficient statement
of an overt act to effect the object of the conspiracy,
or alleges both the conspiracy and the contemplated
crime in the language of the respective statutes
defining them.”
The information charging herein appellants for
the death of Jonathan Calpito, as amended, has but
simply stated:
“That on or about the 20th day of
October 1994, in the City of Baguio,
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 33 –
x---------------------------------------------------x
Philippines, and within the jurisdiction of
this Honorable Court, the above-named
accused, being then armed with a knife,
with intent to kill and with treachery and
taking advantage of their numerical
superiority and combined strength, did
then and there willfully, unlawfully and
feloniously attack, assault and stab
JONATHAN CALPITO Y CASTRO suddenly
and unexpectedly, without any warning
whatsoever, inflicting upon him a stab
wound at the left thorax at the level of the
7th rib, left medclavicular line, penetrating the pereduum and left ventricle
causing left remothones of 700 cc and
hemoperecuduum of 250 cc, which
directly caused his death.
“CONTRARY TO LAW.
The opinion of the trial court to the effect that
conspiracy may be inferred from the allegation of
abuse of superior strength and with the aid of
armed men, i.e., that “x x x the above-named
accused, being then armed with a knife, with intent
to kill x x x and taking advantage of their
numerical superiority and combined strength, did
then and there willfully, unlawfully and feloniously
attack, assault and stab JONATHAN CALPITO Y
CASTRO x x x” is difficult to accept. Conspiracy
arises when two or more persons come to an
agreement concerning the commission of a felony
and decide to commit it. Conspiracy comes to life at
the very instant the plotters agree, expressly or
impliedly, to commit the felony and forthwith to
actually pursue it. Verily, the information must
state that the accused have confederated to
commit the crime or that there has been a
community of design, a unity of purpose or an
agreement to commit the felony among the
accused.* Such an allegation, in the absence of the
usual usage of the words “conspired” or
“confederated” or the phrase “acting in conspiracy,”
must aptly appear in the information in the form of
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 34 –
x---------------------------------------------------x
definitive acts constituting conspiracy. In fine, the
agreement to commit the crime, the unity of
purpose or the community of design among the
accused must be conveyed such as either by the
use of the term “conspire” or its derivatives and
synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be
alleged, not just inferred, in the information on
which basis an accused can aptly enter his
plea,* a matter that is not to be confused with or
likened to the adequacy of evidence that may be
required to prove it. In establishing conspiracy
when properly alleged, the evidence to support it
need not necessarily be shown by direct proof but
may be inferred from shown acts and conduct of
the accused.
In the absence of conspiracy, so averred and
proved as heretofore explained, an accused can
only be made liable for the acts committed by him
alone and this criminal responsibility is individual
and not collective. And so it is that must be so held
in this case. x x x
(At pages 374-378)
The same rule was applied in the following cases: Dado v.
People, 392 SCRA 46, 52-53 (2002); Garcia v. Court of Appeals,
368 SCRA 22, 228-30 (2001).
In the instant case, there is even no need to determine, as
in the above cases, whether the information sufficiently alleges
the fact of conspiracy, for even if it does, Gov. Singson and the
others who “collected” jueteng money, or who did “amass,
accumulate, or acquire” ill-gotten wealth are not named as
conspirators.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 35 –
x---------------------------------------------------x
Where there is no conspiracy, the Supreme Court, in
Quitlong16
stated, reiterating a well-established rule, “in the
absence of conspiracy, so averred and proved . . ., an accused
can only be made liable for the acts committed by him alone
and
this
collective.”
criminal
responsibility
is
individual
and
not
The acts of Gov. Singson, and of others, of
“receiving or collecting” money from illegal gambling, may not
be imputed to accused Estrada.
Nor can the “mens rea” of
those who received or collected the jueteng money be imputed
to him. Simply put, accused Estrada did not, as the Amended
Information alleged, “AMASS, ACCUMULATE and ACQUIRE”
ill-gotten wealth ―
(a)
by receiving OR collecting, directly or
indirectly, on several instances, money in
the aggregate amount of Five Hundred
Forty-five
Million
Pesos
(P545,000,000.00), more or less, from
illegal gambling in the form of gift,
share, percentage, kickback or any
form of pecuniary benefit, by himself
and/or* in connivance with co-accused
Charlie ‘Atong’ Ang, Jose ‘Jinggoy”
Estrada, Yolanda T. Ricaforte, Edward
Serapio, and John Does and Jane Does,
in consideration of toleration or
protection of illegal gambling;*
While it may pale in significance, in light of the above,
Sec. 1(d) (2) requires that the receipt of a “. . . gift, share,
percentage, kickback or any form of pecuniary benefit . . .”
must be “by reason of the office or position of the public
16
Supra.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 36 –
x---------------------------------------------------x
officer
concerned;
however,
sub-paragraph
(a)
of
the
Amended Information contains no allegation, and consequently
no proof may be considered, that the receipt or collection of
money from “illegal gambling” was “by reason of the office or
position of the public officer concerned.”
Further, while the “Amended Information” alleges that the
receipt or collection of money from illegal gambling was “in
consideration of toleration or protection of illegal gambling”, no
evidence was offered, and none is on record, that there is
illegal gambling or jueteng that was ongoing which had to be
“tolerated or protected”. That there is jueteng in our country is
not a matter of judicial notice.17 Its existence must be proven.
The engagement in jueteng of those who paid for its “toleration
or protection” must likewise be established. And, of course,
assuming the point is still relevant, that it was “tolerated” or
“protected” may likewise not be assumed. No proof of any of
these facts is on record.
Sub-paragraph (c) of the Amended Information alleges
that the constitutive acts of “AMASSING, ACCUMULATING
and ACQUIRING”
(c)
17
ill-gotten wealth was done:
by directing, ordering and compelling,
for his personal gain and benefit,* the
Government Service Insurance System
(GSIS) to purchase, 351,878,000 shares
of stocks,* more or less, and the Social
Security System (SSS), 329,855,000
See Section 1, Rule 129, Rules of Court.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 37 –
x---------------------------------------------------x
shares of stock, more or less, of the Belle
Corporation in the amount of more or less
One Billion One Hundred Two Million
Nine Hundred Sixty Five Thousand Six
Hundred Seven Pesos and Fifty Centavos
[P1,102,965,607.50] and more or less
Seven Hundred Forty-four Million Six
Hundred Twelve Thousand and Four
Hundred Fifty Pesos (P744,612,450.00),
respectively, or a total of more or less One
Billion Eight Hundred Forty Seven Million
Five Hundred Seventy Eight Thousand
Fifty Seven Pesos and Fifty Centavos
(P1,847,578,057.50); and by collecting
or receiving, directly or indirectly, by
himself and/or in connivance* with
John Does and Jane Does, commissions
or percentages* by reason of said
purchases of shares of stock in the
amount of One Hundred Eighty Nine
Million Seven Hundred Thousand Pesos
[P189,700,000], more or less, from the
Belle Corporation* which became part of
the deposit in the Equitable –PCI Bank
under the account name “Jose Velarde”;
Belle
shares
selling
commission
collected
by
Jaime Dichaves
The Court found accused Estrada culpable under subparagraph (c) on the basis of the following findings:
This Court finds that the prosecution
failed to prove, beyond reasonable doubt,
. . . except for the commission received
from the sale of Belle shares to GSIS
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 38 –
x---------------------------------------------------x
and SSS * and the money collected from
illegal gambling. x x x
xxx
However, the two different series of
predicate
acts
outlined
above
(particularly, first, the regular and
methodical acquisition of ill-gotten wealth
through collections from illegal gambling
and second, the receipt of unlawful
commissions from the sales of Belle
shares* (twice), whether taken separately
or independently of the other or in
combination
with
each
other,
unquestionably constitute the crime of
plunder as defined by Section 2, in
relation to Section 1(d) of RA 7080 as
amended.
(At pp. 206-207)
With particular reference to the payment or receipt of the
commission for Belle shares, the Court, in its findings,
stated:
After the purchase by GSIS and
SSS pf the Belle Shares, Ocier caused
the preparation of a check by Eastern
Securities Development Corporation
in the amount of P189,700,000.00 *
representing the profit commission to be
paid from the sale. [TSN, January 14,
2002, p. 33-36)
xxx
xxx
xxx
Ocier testified that he delivered
the check to the residence of
Dichaves in No. 19 Corinthian
Gardens, Quezon City* [TSN, January
9, 2002, p. 13] and he delivered the
check because he had a pre-arranged
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 39 –
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appointment with Dichaves wherein he
was supposed to hand the check to
Dichaves. [Ibid. p. 15] Mr. Dichaves
arranged the appointment because he
wanted Ocier to explain in person why
the check amount is P189,700,000.00
when the pre-agreed amount was
P200,000,000.00. [Ibid. p. 18] Ocier
explained that he deducted transaction
taxes and brokers’ commission from the
amount
of
P200,000,000.00
and
rounded the figure to P189,700,000 of
(sic) which Dichaves agreed.
Ocier
learned later on that the check he
delivered to Dichaves was deposited at
Far East Bank to the account which he
believes belonged to Dichaves. [Ibid. p.
60]
(At pp. 156-157)
It was Jaime Dichaves who actually received the check of
P189,700,000.00; it was consequently he who “AMASSED,
ACCUMULATED
or
ACQUIRED”
the
amount
of
P189,700,000.00 representing the profit commission from the
purchase of Belle shares by GSIS and SSS. And if we were to
consider the act of purchasing Belle shares by the GSIS and
SSS as the constitutive acts of “AMASSING, ACCUMULATING
or ACQUIRING” the P189,700,000.00 as ill-gotten wealth, it
was Federico Pascual and Carlos Arellano, respectively, who
committed the acts.
The Amended Information, it will be recalled, names the
following: Jose ‘Jinggoy’ Estrada, Charlie “Atong” Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a.
Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, Jane Doe
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 40 –
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a.k.a. Delia Rajas, and John Does & Jane Does as those who
acted
in
conspiracy
with
accused
Estrada;
while
sub-
paragraph (c) alleges that the acts were committed “by himself
(Former President Estrada) and/or in connivance with John
Does and Jane Does”. Federico Pascual and Carlos Arellano
are not named as co-conspirators. Nor Jaime Dichaves. The
respective acts of Federico Pascual and Carlos Arellano,
respectively, to purchase Belle shares by the GSIS and the
SSS, and of Jaime Dichaves of receiving the amount of
P189,700,000.00 as commission for the purchase, may
consequently not be imputed to accused Estrada.
Plainly then, it was not accused Estrada who committed
“plunder” because he “did then and there willfully, unlawfully
and criminally AMASS, ACCUMULATE AND ACQUIRE” illgotten wealth “through any or a combination or a series of
overt or criminal acts x x x described as follows: x x x.”
As to sub-paragraph (a), it was Gov. Singson and others.
As to sub-paragraph (c), it was Federico Pascual, Carlos
Arellano and/or Jaime Dichaves. Their acts of “AMASSING,
ACCUMULATING AND ACQUIRING” ill-gotten wealth, may
only be imputed to accused Estrada if Gov. Singson, as to subparagraph (a), Federico Pascual, Carlos Arellano and/or Jaime
Dichaves, as to sub-paragraph (c), acted in conspiracy with
accused Estrada.
The Amended Information does not allege
them to have been co-conspirators. Whether, by the evidence,
they acted in conspiracy is not relevant.
Not having been
alleged in the Amended Information, that they and accused
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 41 –
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Estrada acted in conspiracy, they may not be regarded as coconspirators.
IV. THE ACCUSED PRES. ESTRADA WAS
DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO
CONFRONT WITNESSES
AGAINST
HIM
WHEN
HEARSAY
EVIDENCE
AGAINST
HIM
WAS
ADMITTED.
Corroborative
evidence
considered by the Honorable
Court is plain hearsay and
inadmissible evidence
The Honorable Court refused to give credence to the plain
uncorroborated testimony of Gov. Chavit Singson, except those
which were corroborated by independent evidence. Thus, the
Honorable Court dismissed the testimony of Gov. Singson as
regards the alleged participation of accused Jinggoy Estrada
and Edward Serapio in the so-called conspiracy, and it
acquitted both of them.
Likewise, the Court did not give
credence to the testimony of Gov. Singson as to the alleged
malversation of public funds amounting to P130 Million.
Yet, the Honorable Court chose to believe parts of the
testimony of Gov. Singson which it considered to be supported
by corroborative evidence.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 42 –
x---------------------------------------------------x
In its Findings of Fact Re: Sub-paragraph (a) of the
Amended Information, the Court said that it found “credible
material portions” of Singson’s testimony “insofar as they are
corroborated by independent and competent evidence.”18
It is clear from Decision that the “independent
and
competent evidence” relied on by the court were the “ledgers”,
most notably the “second set of ledgers” allegedly prepared by
Yolanda Ricaforte as “there are circumstances which lend
credibility to the said ledgers” such circumstances being the
huge deposits made by Ricaforte to her various bank records
and multi-million investments “during the period covered by
the second set of ledgers.”19
“Ledgers”
evidence
not
competent
The first corroboration the Honorable Court relied on are
the so-called “ledgers”, the first set of which was prepared by
Gov. Singson himself, and the second set prepared by someone
who
18
19
never testified, Yolanda Ricaforte.
Decision, at 107.
Id., at 108.
There are several
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 43 –
x---------------------------------------------------x
reasons why such “ledgers” should not have been admitted,
much less used to corroborate the testimony of Gov. Singson.
First, the said documents are not really “ledgers” as this
term may be understood in the ordinary course of business as
provided for in Sec. 43, Rule 130 of the Rules of Court. The
“ledgers” here in question are what the witness calls listahan
which he merely used to refresh his memory while testifying
in Court.
These are not ledgers as the term is used in
accounting or business, which is defined as “an account book
of final entry, containing all accounts”.20 A mere listahan, or
an initial listing of cash payments made on scraps of paper,
cannot really qualify as ledgers.
A “ledger” of loose leaves
and without any paging, like the second set of ledgers, has “no
authenticity whatsoever and therefore, cannot be introduced
in any case”.21 A ledger presented by a person other than the
one who made the entries in the ledger is not admissible as
evidence for being hearsay.
Second, much less do they qualify as entries in the
course of business, because under Sec. 43 of Rule 130, to be
20
21
Webter’s Unabridged Dictionary (1994), p. 817.
U.S. vs. Dayutal, 4 Phil. 93.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 44 –
x---------------------------------------------------x
admissible as exceptions to the hearsay rule, (1) they must be
made at, or near the time of the transactions to which they
refer, and (2) made by a person deceased or unable to testify,
who was in a position to know the facts therein stated.
Singson’s testimony
ledgers were not
clearly show that the entries in the
made
at
or near the time of the
transactions to which they relate. As the Decision said:
According to Gov. Singson, the jueteng
collections were placed in a scratch
paper as they came every fifteen (15)
days, at the middle and the end of the
month or five (5) days after the end of
the month. When all the collectors had
arrived, the list was finalized and then
transferred to the computer.
The
ledgers were prepared upon instructions
of Former President Estrada because the
latter was strict with money.22
Third, in this case, Gov. Singson was able to testify, and
the Court admitted his own self-serving
listahan, as
corroborative evidence. This is inconsistent with the position
of the Court rejecting the uncorroborated testimony of Gov.
Singson, first with regard to his testimony about the
malversation of the P130 million tobacco excise tax fund;
second, with his testimony as to the participation of accused
Jinggoy Estrada in the collection of jueteng proceeds; and
22
Decision, at 19.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 45 –
x---------------------------------------------------x
third, his testimony as to the role of accused Edward Serapio
in
allegedly
“laundering”
the
jueteng
proceeds.
This
notwithstanding, the Court suddenly turns around and gives
credence to the testimony of Singson on the ground that such
is corroborated by Singson’s own listahan.23 Since the entries
in these ledgers were either made by Singson himself or by
Ricaforte under his supervision, the listahan of Singson acted
as bootstrap of the incredible oral testimony of Singson into
competent and credible evidence against accused FPres.
Estrada. This kind of intellectual bootstrapping is not allowed
under our rules of evidence.
The self-serving listahan of
Singson
to
cannot
operate
cure
untrustworthiness of the same witness.
the
inherent
The record of this
case will show that Gov. Singson himself has fabricated
documents calculated to defraud his own province of Ilocos
Sur.
These documents consisted of (1) Resolution No. 99,
Series of 1998, appropriating P200 Million of RA 7171 funds
for
payment
of
flue-curing
barns,
a
re-drying
plant,
infrastructure projects, post-harvest facilities (Exhibits “137A” to “137-C”; also marked as Exhibit “43-B” by de oficio
counsel); Purchase Request No. 783 (Exhibit “137-G”);
23
The “ledgers” referred to are Exhs. ‘W7’, ‘A-4’, ‘X7’, ‘Y7’, Z7’, ‘A8’, ‘B8’, ‘C8’, ‘D8’, ‘E8’, and
including sub-markings.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 46 –
x---------------------------------------------------x
Purchase Orders dated August 31, 1998 (Exhibit “137-I” and
Exhibit “137-J”); Request for Allocation of Allotment in the
amount of P170 Million (Exhibit “137-D”); Acceptance of
Delivery No. 18220 dated September 9, 1998 (Exhibits “137L” and “137-M”); Certificate of Inspection re Flue Curing
Barns (Exhibits “137-N” to “137-O”); Memorandum of
Agreement between the Province of Ilocos Sur and NS
International (Exhibits “137-P” to “137-Q”); Memorandum
Receipt
re
Flue
Curing
Barns
(Exhibit
“137-R”);
Disbursement Voucher in the amount of P170 Million
(Exhibits “137-S”, “137-T”, and “137-V”); Notice of Funding
dated August 25, 1998 (Exhibit “137-X”); Disbursement
Voucher in the amount of P100 Million (Exhibit “138”); and
Landbank Check dated August 24, 1998 in the amount of
P200 Million (Exhibit “137-Y”).
The alleged vendor, NS
International, issued receipts for the amount, Official Receipt
No. 62 dated August 31, 1998 (Exhibit “43-F”) and Official
Receipt No. 002 dated March 19, 1999 (Exhibit “197”).
Officials of the Province executed a Certificate of Delivery and
of Acceptance (Exhibit “43-L”) as well as a Certificate of
Inspection (Exhibit “43-K”).
A witness who admits falsifying
formal documents like the ones listed above certainly cannot
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 47 –
x---------------------------------------------------x
be believed to be lily-white with respect to production of a
listahan of cash payments, which lists consist only of mere
scraps of loose paper before these were transferred to
computer copy paper. Indeed, for the Governor of a province,
Singson has shown that he is only too willing to defraud his
province and he can produce the needed documents to cover
up his tracks. If he could do this to his province, it is probable
that he can also do it to his enemies.
Fourth, Singson’s ledgers cannot be given credence
because the entries therein have not been properly verified
even by the witness himself.
From the record, Singson
testified only on the following entries, which carry the
corresponding amounts he allegedly delivered to “Asiong
Salonga”:
A.S. (ASIONG SALONGA) ENTRIES IN
THE LEDGERS
Exh
Exh
Exh
Exh
Exh
Exh
Exh
Exh
W7-1
X7-1
Y7-1
Z7-1
A8-1
A8-2
B8-1
C8-1
5.000
5.000
6.000
5.000
5.000
5.000
5.000
5.000
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 48 –
x---------------------------------------------------x
Exh C8-2
Exh D8-1
Exh D8-2
Exh E8-1
Exh E8-2
Exh A-4-1
Exh A-4-2
Exh A-4-A-1
Exh A-4-B-1
Exh A-4-B-2
Exh A-4-C-3
Exh A-4-C-4
Exh A-4-D-1
Exh A-4-D-2
Exh A-4-E-1
Exh A-4-E-2
Exh A-4-F-1
Exh A-4-F-2
Exh A-4-G-1
Exh A-4-G-2
Exh A-4-H-1
Exh A-4-H-2
Exh A-4-I-1
Exh A-4-I-2
Exh A-4-J-1
Exh A-4-J-2
Exh A-4-K-1
Exh A-4-K-2
Exh A-4-L-1
TOTAL
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
5.000
3.300
5.000
2.650
3.600
3.050
175,950,000
Singson’s “ledgers” from November 1998 to July 1999
show a net balance of P124,444,000, after
deductions:
NOVEMBER
1998
9,350,000
he made
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 49 –
x---------------------------------------------------x
DECEMBER
1998
JANUARY 1999
FEBRUARY
1999
MARCH 1999
APRIL 1999
MAY 1999
JUNE 1999
JULY 1999
TOTAL
7,050,000
300,000
19,700,000
15,800,000
18,465,000
18,829,000
18,450,000
16,500,000
124,444,000
On the other hand, the ledgers of Yolanda Ricaforte,
assuming these are competent, covering the period from
August, 1999 to August, 2000, show the following balance
after some deductions:
AUGUST 1999
14,000,000
SEPTEMBER
17,341,000
1999
OCTOBER 1999
19,721,000
NOVEMBER
14,929,150
1999
DECEMBER
17,230,000
1999
JANUARY 2000
17,650,000
FEBRUARY 2000
11,660,000
MARCH 2000
9,970,000
APRIL 2000
2,075,000
MAY 2000
2,000,000
JUNE 2000
0
JULY 2000
0
AUGUST 2000
-250,000
TOTAL
126,576,150
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 50 –
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Chavit Singson claimed that after making deductions, he
delivered P200 Million personally to accused Pres. Estrada.
However, his entries for “Asiong Salonga” show only a total of
P175,950,000.00. He also claimed that the net balance of the
collection for November 1998 to July 1999 was P123,000.00.
Together with the amount of P126,576,150.00,
this was
turned over to Ricaforte. This amount was allegedly deposited
by Ricaforte at EPCIB, part of which was allegedly turned over
to accused Serapio for the Erap Muslim Youth Foundation.
The Foundation
million.
was shown to have a deposit of over P200
The self-contradiction and inconsistencies in the
testimony of Gov. Singson in the amount of money allegedly
delivered to accused Pres. Estrada are too glaring and too
material
such
unreliable.
that
they
render
his
testimony
utterly
A witness like Singson does not meet the main
requirement for the admission of this
class of
evidence,
which is reputation for honest bookkeeping.
Fifth, it must be remembered that ledgers or lists are
merely evidence of transactions and not the transactions
themselves. In fact, under the circumstances, the ledgers are
at best balance sheets which many not even be legally
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 51 –
x---------------------------------------------------x
considered as “entries made in the ordinary course of
business”. As the Supreme Court said:
(a) paper which shows “a summation or
general balance of all accounts” but not
the particular items going to make up the
several accounts xxx is
therefore
essentially different from a paper
embracing a “full
and complete
statement of all the disbursements and
receipts, showing from what resources
such receipts were derived, and for what
and to whom such disbursements or
payments were made, and for what object
or purpose the same was made” but such
matters may find an appropriate place in
an itemized account. Neither can it be
said that a balance sheet complies with
the third requisite, since the entries
therein were not made at or near the
time of the transactions to which they
related.24
Since the ledgers in fact and in law were not “entries in the
course of the business” or even if they were, the entries were
not shown to have been made or near the time the alleged
jueteng collections were received by Singson nor were the
entries of alleged deliveries to Erap shown to have been made
at or near the time of said alleged deliveries, the ledgers are
not therefore legally admissible in evidence, being hearsay, as
Ricaforte, the person who allegedly made the entries, did not
testify in court about them.
24
N. 4, supra.
It should be noted here that the
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 52 –
x---------------------------------------------------x
second set of ledgers were allegedly prepared by one Yolanda
Ricaforte, who was not presented as witness. There is no proof
as to the authenticity and the contemporaniety of said ledgers,
except on the mere say-so of Singson. This is insufficient to
prove that the entries in the ledgers were made at the time of
the transaction to which they relate. It is absolutely necessary
for the admission of such entries to prove that they were made
at or about the time of the transaction.25 Thus, where there is
no proof that the entries were contemporaneous, and the
person who made the memoranda did not testify concerning
them, the exhibits cannot be admitted as evidence.26
The Court ruling that “there are circumstances which
lend credibility to the said ledgers” is therefore
entirely
erroneous as hearsay evidence, whether corroborated or not
and/or made credible by other evidence, remains hearsay and
therefore never admissible and always with zero
probative
value27 and certainly “cannot be given credence.”28
25
Figueras v. Serrano, 52 Phil. 28, 33 (1928).
Figueras v. Serrano, supra.
27
Baguio vs. Court of Appeals, 226 SCRA 369, 370 (1993) Philippine Free Press, Inc. vs. Court of
Appeals, 473 SCRA 639, 653 (2005).
28
People vs. Damaso, 212 SCRA 547 (1992).
26
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 53 –
x---------------------------------------------------x
Hearsay
evidence
from
witness
Ocier
improperly
admitted
Compounding the evidentiary error of admitting the
hearsay listahan of Gov. Singson as proof is the error in
admitting the testimony of witness Willy Ocier.
As the
Decision puts it, “When asked who was supposed to get the
commission, Ocier answered that according
Dichaves,
Pres.
commission.”29
Estrada
was
supposed
to Jaime
to
get
In admitting that this testimony of Ocier was
admissible, the Honorable Court reasoned:
“The
Court
finds
that
International
Exchange Bank Check No. 6000159271 dated
November 5, 1999, payable to cash in the
amount
of P189,700,000.00 with Eastern
Securities Corporation as Drawer (Exh. R), was
paid as commission in consideration of the
purchase of Belle Shares by SSS and GSIS.
While the testimony of Ocier to the effect that
Dichaves told him that it was FPres. Estrada
who imposed the condition for the payment of
commission is hearsay insofar as Fpres. Estrada
is concerned, the said testimony is admissible as
proof
that such statement was made by
Dichaves to Ocier. Testimony of what one heard
a party say is not necessarily hearsay. It is
admissible in evidence, not to show that the
statement was true, but that it was in fact made.
If credible, it may form part of the circumstantial
29
Decision, p. 156.
the
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 54 –
x---------------------------------------------------x
evidence necessary to convict
(Bon vs. People, 419 SCRA 103)
the accused.”
With due respect, it is submitted that this is error.
While it is true that an extra-judicial statement of a person
may be admissible in evidence as an exception to the hearsay
rule, it is admissible only for the purpose of showing the state
of mind which ensued in another person in consequence of
the utterance.30 According to Wigmore:
S1790. Utterances as indicating
circumstantially the speaker’s own state
of mind. The condition of a speaker’s
mind, as to knowledge, belief, rationality,
emotion, or the like, may be evidenced by
his utterances, used either testimonially
as assertions to be believed, or
cicumstantially as affording indirect
inferences. Utterances of the former sort
may be received under the exception for
statements of a mental condition (S1714
supra).31
The Honorable Court’s reliance on the case of Bon v.
People seems to be misplaced, as the obiter culled from that
decision was taken out of its factual context. In that case, the
Supreme Court actually ruled that the
testimonies of two
witnesses could not be considered as hearsay
reasons.
First,
the witnesses were present
for three
and within
hearing distance when the accused allegedly made an
30
31
Wigmore on Evidence, sec. 1789 (1976 ed.).
Wigmore, supra, sec. 1790
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 55 –
x---------------------------------------------------x
admission against his own perception.
Second, what
was
sought to be admitted as evidence was the fact that the
utterance was actually made by the accused, not necessarily
that the matters therein stated
were true.
Third, even
assuming that the testimonies were hearsay, the accused was
barred from questioning the admission of the
testimony
because he failed to object to it at the time it was offered.32
In the case at bar, the Court, while
statement of
Dichaves to
testimony of witness
Ocier
considering the
as hearsay, admitted the
Ocier “as proof that such statement
was made by Dichaves to Ocier.”33 But for what purpose? If it
was admitted as an exception to the hearsay rule, it could
have been only to prove the state of mind of the alleged
speaker,
Dichaves,
or
as
an
statements which are facts in issue.
independently
relevant
However, the state of
mind of Dichaves is not in issue in this case.
Neither
is
Dichaves’ statement an independently relevant utterance
which is a fact put in issue, that is, that certain words were
spoken without reference to the truth or falsity
32
469 SCRA at pp. 109-110.
Decision, p. 158.
34
Francisco Evidence, p. 379 (1964).
33
thereof.34
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 56 –
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Furthermore, in this case, the admission as evidence of the
said statement of Dichaves was objected to by the accused.
V.
THE ACCUSED PRES. ESTRADA WAS
DENIED HIS CONSTITUTIONAL RIGHT
TO PRESUMPTION OF INNOCENCE AS
THE COURT CONVICTED HIM ON THE
BASIS OF SURMISES, INFERENCES
AND SPECULATIVE EVIDENCE.
Ledgers cannot be admitted
to prove accused’s
guilt
under rule of res inter alios
acta.
Aside from being inadmissible for being hearsay, the
ledgers are also inadmissible against accused under the res
inter alios acta rule.35 The accused’s life, liberty and property
as well as his presumption of innocence cannot be prejudiced
by the acts of Ricaforte who has not been proven by
competent evidence to be the accused’s partner or agent. In
fact, per Singson, she was only Erap’s “auditor”.36
35
36
Alderoa & Co. vs. Warner, Barnes & Co., 30 Phil. 153, 198 (19__).
Decision, at 19.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 57 –
x---------------------------------------------------x
Truly, if this were a civil case, Pres. Estrada would not
even have to deny under oath the genuineness or due
execution of the ledgers as they do not show his participation
in their execution. There is all the more reason not to hold
accused hostage to the ledgers since this is a criminal case
where not only is the quantum of proof needed to hold him
liable for the alleged crime much higher than in a civil case,
but also because doubts are to be resolved in his favor.
Clearly,
therefore,
the
only
facts
proven
by
the
prosecution are (1) the existence of the ledgers and (2) the
various investments and bank deposits of Ricaforte
some Singson checks were deposited.
where
Again, accused will
hypothetically concede that, as the Court said:
(T)he ledgers were prepared and later produced
before the Senate by Ricaforte and not by Gov.
Singson37.
However, said facts or circumstances, whether
each
standing alone or lumped together, do not prove beyond
reasonable doubt that the accused received jueteng money.
37
Id., at 111.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 58 –
x---------------------------------------------------x
Consequently, in the absence of direct evidence of receipt
by the accused Ricaforte of the alleged jueteng money
allegedly subject of Ricaforte’s
ledgers and allegedly
deposited to her account, the Court could only rely on
circumstantial evidence.
Surmises, inferences, and
even reasonable suspicion do
not
constitute
circumstantial evidence.
Circumstantial evidence is, however, evidence
derived
from the judicially known circumstances of the case; it is a
logical conclusion drawn by the court from duly proven facts
relevant
to the case.
It should not be confused with non-
existent evidence. A lack of evidence is not a “circumstance.”
Nothing can be logically drawn therefor except perhaps that it
is evidence of lack of evidence.
In herein case, there is no proven fact from which,
together with the fact of existence of the Ricaforte ledgers and
desposits, could be logically drawn the conclusion that Erap
therefore received the Ricaforte deposits.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 59 –
x---------------------------------------------------x
Erap admitted that he knows Ricaforte.
But even if
Ricaforte had been duly proven to be an Erap close friend like
Singson, all that could be gathered therefrom is some kind of
an implication or a suspicion that perhaps in view thereof
Ricaforte gave her deposits to Erap.
However,
an
implication
here,
suspicion there, a surmise that “it
happened
evidence.
that way”,
even
a
reasonable
must actually have
do not add up to circumstantial
Those are just guesses made precisely because
there is no evidence. And multiple guesses do not equal a
proven fact from which together with other proven facts, a
conclusion can be logically drawn that the deposited money
reached Pres. Estrada from Ricaforte.
The
well-settled
rule
is
that
“no
combination
of
speculation, surmise and suspicion, however, contrived, can
attain the category of evidentiary proof”38 as proven facts, not
conjectures, decide cases.39
38
39
Mercado vs. Medina, 22 SCRA 578, 584 (1968).
Acabal vs. Acabal, 454 SCRA 555 (2005)
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 60 –
x---------------------------------------------------x
Also mere speculation is relied on for the conclusion that
jueteng money was used by Singson for the P1.2M he gave to
Laarni Enriquez and P200M to the ERAP Muslim Youth
Foundation,
a
duly
organized
non-stock,
non-profit
corporation.
From the fact that Singson gave P1.2M to Laarni and
P200M to the foundation, the Court concluded that therefore
the money Singson
gave was jueteng money as allegedly
shown in the “ledgers” for why else would Singson give such
a huge amount of money if the same were not from alleged
jueteng funds of the accused?
The Court of course could just as well have surmised
that perhaps the money Singson gave was payment of a loan
from Pres. Estrada as considering that accused was said to
lend money to friends like Gatchalian, it is reasonable to
surmise that he also lent to close friend like Singson. Or
Singson may have used his own money to give Laarni P1.2M
as said amount was supposed to be an “assessment”
from
friends as their share in a P13M gift for Laarni, otherwise the
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 61 –
x---------------------------------------------------x
P1.2M would not be Singson’s “assessed” share if accused’s
money was after all used therefor.
At any rate, since the “ledgers”, as hearsay evidence,
could not legally
prove the alleged jueteng collection, the
source of the money given by Singson to Laarni and to the
foundation as well as other amounts Singson claimed to have
delivered to accused is a mystery that cannot be lawfully
revealed by speculations and suspicions.
PRAYER
WHEREFORE, Accused Pres. Estrada respectfully prays
that the Decision of the Honorable Court dated September 12,
2007 be reversed and set aside and another be rendered
acquitting the accused, with costs de oficio.
Accused prays for such other relief as may be just and
equitable under the circumstances.
Makati for Quezon City, September 25, 2007.
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 62 –
x---------------------------------------------------x
ESTELITO P. MENDOZA
4th Floor, Dynavision Bldg.
108 Rada St., Legaspi Village
Makati City
Tel. No. 817-0016
Roll No. 4441
IBP LFN 01652
AGABIN VERZOLA HERMOSO
& LAYAOEN LAW OFFICES
26th Floor, Pacific Star Bldg.
Gil Puyat Ave. cor. Makati Ave.
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Tel. No. 817-7717
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1235 Makati City
Tel. No. 831-4279
Roll No. 19190
PACIFICO A. AGABIN
Roll No. 16609/06.07.61
PTR No. 0267476/01.02.07/Makati By:
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IBP Life Roll No. 251
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PTR No. 5328282/01.02.07/Manila
CLEOFE B. VILLAR-VERZOLA
Roll No. 15279/01.26.61
JOSE B. FLAMINIANO
101 Ma. Clara Street,
Sta. Mesa Heights,
1113 Quezon City
Tel. No. 711-9558
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PTR No. 5333999/01.08.07/Manila
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ANNA LIZA G. LOGAN
Roll No. 42751/05.05.98
PTR No. 0385206/01.31.07/Makati
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J. ALBERTO C. FLAMINIANO
30th Flr., Tycoon Center
Pearl Drive, Ortigas,
Pasig City 1605
Tel. No. 634-6678
Roll No. 32382
IBP Life Roll No. 06212
PTR No. 3671232/01.19.07/Pasig
“Motion for Reconsideration”
People vs. Joseph Ejercito Estrada.
Crim. Case No. 26558
Page - 63 –
x---------------------------------------------------x
NOTICE OF HEARING
OFFICE OF THE SPECIAL PROSECUTOR
Sandiganbayan, Centennial Building
Quezon City
Greetings:
Please be informed that undersigned counsels for the
accused Pres. Estrada will submit the foregoing Motion for the
consideration and approval of the Honorable Court on Friday,
October 5, 2007, at 8:30 a.m.
PACIFICO A. AGABIN
Copy furnished by personal delivery:
OFFICE OF THE SPECIAL PROSECUTOR
Sandiganbayan, Centennial Building
Quezon City
ejercito-mot. for recon.
9.20.07