REPUBLIC OF THE PHILIPPINES - WordPress.com · Web viewPeople, 392 SCRA 46, 52-53 (2002); Garcia v. Court of Appeals, 368 SCRA 22, 228-30 (2001). In the instant case, there is even

REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

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. 26558Page - 2 –

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NOT INCLUDED IN THE INFORMATION.

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.



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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 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.



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the period from June 1998 to January 2001, he did then and

there

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:

(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

* Emphasis ours.



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or protection of illegal gambling;*

(b) by diverting, receiving, misappropriating, converting or misusing* directly or 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 co-accused 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 Forty-four Million Six Hundred Twelve



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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”;

(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.*



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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” 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



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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 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



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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 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.



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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 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 sub-paragraph (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 sub-paragraphs (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)



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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)

In other words, instead of the acts described in sub-paragraphs (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 sub-paragraph (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 sub-paragraphs (a) and (c) of the Amended



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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.

(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.



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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. 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



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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 advantage of his official position”

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 OIC-Director, 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,



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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 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



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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.

Yet nowhere in the lengthy presentation of the

Prosecution is there any evidence of what the Amended

Information alleges as “in 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



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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-

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 for bribery. That

explains why the subparagraph (a) specifies that the money

“from illegal gambling” was received 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 2 R.A. 7080, sec. 1(d).3 377 SCRA 538 (2002).



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illegal gambling”.4 The dissenting opinions likewise treat of

subparagraph (a) as amounting to bribery.5

Yet nowhere in the Decision, and even in the Prosecution’s

evidence, is there any hint of toleration or protection of

jueteng 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

4 377, SCRA at p. 553.5 377, SCRA at p. 602.6 Decision, p. 21.



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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 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 7 People vs. Magallanes, 249 SCRA 212, 223 (1995).8 Lacson vs. Executive Secretary, 301 SCRA 298 (1998).



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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 the discharge of Erap’s official duties as

President and the commission 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.



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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 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

9 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?



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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. The bettors in

jueteng

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



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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

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

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.



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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

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, 11 Esguerra v. People, 108 Phil. 1078, 1084-85.12 Ibid.



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proceeds from private persons operating gambling joints.

Without any unlawful consideration, it is incongruous to

speak of “expense and damage of the Filipino people and

the Republic.”

III. NOT ACCUSED, BUT OTHERS, DID “AMASS, ACCUMULATE OR ACQUIRE” ILL-GOTTEN WEALTH UNDER SUB-PARAGRAPH (A) & (C) OF THE INFORMATION.

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 OR ACQUIRING” ill-gotten wealth, are committed.

As the accused has described in his “Memorandum” ―



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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).

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:

AcquireAcquiredAcquiring

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

13 Merriam Webster’s Collegiate Dictionary,Tenth Edition, pp. 8, 10 and 35.



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object) in a detector <acquire a target by radar>

Accumulate

: to gather or pile up* especially little by little* : AMASS <accumulate a fortune> : to increase gradually in quantity or number

Amasses 1 : to collect* for oneself : ACCUMULATE <amass a great 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

http://www.m-w.com/dictionary/assemble

http://www.m-w.com/dictionary/gather

http://www.m-w.com/dictionary/accumulate

http://www.m-w.com/dictionary/amass



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“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:

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 x x 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 ILL-GOTTEN WEALTH* as follows:



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(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 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



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a.k.a. Delia Rajas, and John Does & Jane Does x x x x x x

As to sub-par. (a), particularly:

(a) x x x in connivance with co-accused Charlie “Atong” Ang, Jose “Jinggoy” Estrada, Yolanda T. Ricaforte, Edward Serapio, and John Does and Jane Doesx x x x 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

14 At pp. 207-208, Decision.15 Cited in Estrada vs. Sandiganbayan, 377 SCRA 538 (2002), at pp. 563-565.



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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 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 thename 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 ap-proximate 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 in-



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formation 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 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 ac-cused 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



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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, 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, pene-trating 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



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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 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 con-stituting 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)



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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.

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 criminal responsibility is individual and not collective.” 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

16 Supra.



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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 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.17 See Section 1, Rule 129, Rules of Court.



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Sub-paragraph (c) of the Amended Information alleges that the constitutive acts of “AMASSING, ACCUMULATING and ACQUIRING” ill-gotten wealth was done:

(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 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”;



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Belle shares selling commission collected by Jaime Dichaves

The Court found accused Estrada culpable under sub-paragraph (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 and SSS * and the money collected from illegal gambling. x x x x x x

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:



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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 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



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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 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” ill-gotten wealth “through any or a combination or a series of overt or criminal acts x x x described as follows: x x x.”



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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 sub-paragraph (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 Estrada acted in conspiracy, they may not be regarded as co-conspirators.

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



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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.

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

18 Decision, at 107.



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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” not competent evidence

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 never testified, Yolanda

Ricaforte. There are several reasons why such “ledgers”

should not have been admitted, much less used to

corroborate the testimony of Gov. Singson.

19 Id., at 108.



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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

admissible as exceptions to the hearsay rule, (1) they must

be made at, or near the time of the transactions to which 20 Webter’s Unabridged Dictionary (1994), p. 817.21 U.S. vs. Dayutal, 4 Phil. 93.



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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 clearly show that the entries in

the ledgers were not 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

third, his testimony as to the role of accused Edward Serapio

in allegedly “laundering” the jueteng proceeds. This

22 Decision, at 19.



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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 cannot operate to cure

the inherent untrustworthiness of the same witness. 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 “137-

A” to “137-C”; also marked as Exhibit “43-B” by de oficio

counsel); Purchase Request No. 783 (Exhibit “137-G”);

Purchase Orders dated August 31, 1998 (Exhibit “137-I”

and Exhibit “137-J”); Request for Allocation of Allotment in 23 The “ledgers” referred to are Exhs. ‘W7’, ‘A-4’, ‘X7’, ‘Y7’, Z7’, ‘A8’, ‘B8’, ‘C8’, ‘D8’, ‘E8’, and including sub-markings.



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the amount of P170 Million (Exhibit “137-D”); Acceptance

of Delivery No. 18220 dated September 9, 1998 (Exhibits

“137-L” 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 be

believed to be lily-white with respect to production of a

listahan of cash payments, which lists consist only of mere



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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 W7-1 5.000Exh X7-1 5.000Exh Y7-1 6.000Exh Z7-1 5.000Exh A8-1 5.000Exh A8-2 5.000Exh B8-1 5.000Exh C8-1 5.000Exh C8-2 5.000Exh D8-1 5.000Exh D8-2 5.000Exh E8-1 5.000



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Exh E8-2 5.000Exh A-4-1 5.000Exh A-4-2 5.000Exh A-4-A-1 5.000Exh A-4-B-1 5.000Exh A-4-B-2 5.000Exh A-4-C-3 5.000Exh A-4-C-4 5.000Exh A-4-D-1 5.000Exh A-4-D-2 5.000Exh A-4-E-1 5.000Exh A-4-E-2 5.000Exh A-4-F-1 5.000Exh A-4-F-2 5.000Exh A-4-G-1 5.000Exh A-4-G-2 5.000Exh A-4-H-1 5.000Exh A-4-H-2 5.000Exh A-4-I-1 5.000Exh A-4-I-2 5.000Exh A-4-J-1 3.300Exh A-4-J-2 5.000Exh A-4-K-1 2.650Exh A-4-K-2 3.600Exh A-4-L-1 3.050TOTAL 175,950,000

Singson’s “ledgers” from November 1998 to July 1999

show a net balance of P124,444,000, after he made

deductions:

NOVEMBER 1998

9,350,000

DECEMBER 1998

7,050,000

JANUARY 1999 300,000FEBRUARY 1999

19,700,000



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MARCH 1999 15,800,000APRIL 1999 18,465,000MAY 1999 18,829,000JUNE 1999 18,450,000JULY 1999 16,500,000TOTAL 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 14,000,000SEPTEMBER 1999

17,341,000

OCTOBER 1999 19,721,000NOVEMBER 1999

14,929,150

DECEMBER 1999

17,230,000

JANUARY 2000 17,650,000FEBRUARY 2000 11,660,000MARCH 2000 9,970,000APRIL 2000 2,075,000MAY 2000 2,000,000JUNE 2000 0JULY 2000 0AUGUST 2000 -250,000TOTAL 126,576,150

Chavit Singson claimed that after making deductions,

he delivered P200 Million personally to accused Pres.

Estrada. However, his entries for “Asiong Salonga” show



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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 was

shown to have a deposit of over P200 million. 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

that they render his testimony utterly unreliable. 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

considered as “entries made in the ordinary course of

business”. As the Supreme Court said:



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(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. It should be

noted here that the second set of ledgers were allegedly

prepared by one Yolanda Ricaforte, who was not presented

24 N. 4, supra.



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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

Hearsay evidence from witness Ocier improperly admitted25 Figueras v. Serrano, 52 Phil. 28, 33 (1928).26 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).



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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 to Jaime

Dichaves, Pres. Estrada was supposed to get the

commission.”29 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 evidence necessary to convict the accused.” (Bon vs. People, 419 SCRA 103)

With due respect, it is submitted that this is error.

While it is true that an extra-judicial statement of a person

29 Decision, p. 156.



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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 for

three reasons. First, the witnesses were present and

within hearing distance when the accused allegedly made an

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. 30 Wigmore on Evidence, sec. 1789 (1976 ed.). 31 Wigmore, supra, sec. 1790



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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 considering the

statement of Dichaves to Ocier as hearsay, admitted the

testimony of witness 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 independently relevant

statements which are facts in issue. 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 thereof.34

Furthermore, in this case, the admission as evidence of the

said statement of Dichaves was objected to by the accused.

32 469 SCRA at pp. 109-110.33 Decision, p. 158.34 Francisco Evidence, p. 379 (1964).



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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

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 35 Alderoa & Co. vs. Warner, Barnes & Co., 30 Phil. 153, 198 (19__). 36 Decision, at 19.



x---------------------------------------------------x

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 where

some Singson checks were deposited. 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.

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.

37 Id., at 111.



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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.

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.



x---------------------------------------------------x

However, an implication here, even a reasonable

suspicion there, a surmise that “it must actually have

happened that way”, do not add up to circumstantial

evidence. 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

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 38 Mercado vs. Medina, 22 SCRA 578, 584 (1968).39 Acabal vs. Acabal, 454 SCRA 555 (2005)



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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 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.



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P R A Y E R

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.



x---------------------------------------------------x

ESTELITO P. MENDOZA4th Floor, Dynavision Bldg.

108 Rada St., Legaspi VillageMakati City

Tel. No. 817-0016Roll No. 4441IBP LFN 01652

PTR No. 0267476/01.02.07/Makati

R. A. V. SAGUISAG4045 Bigasan St., Palanan

1235 Makati CityTel. No. 831-4279

Roll No. 19190IBP LFN 601788/12.29.03/PasigPTR No. 5328282/01.02.07/Manila

JOSE B. FLAMINIANO101 Ma. Clara Street,

Sta. Mesa Heights, 1113 Quezon CityTel. No. 711-9558

Roll No. 5736IBP No. 711634/03.07.07/PasigPTR No. 5333999/01.08.07/Manila

J. ALBERTO C. FLAMINIANO

30th Flr., Tycoon CenterPearl Drive, Ortigas,

Pasig City 1605Tel. No. 634-6678

Roll No. 32382IBP Life Roll No. 06212

PTR No. 3671232/01.19.07/Pasig

AGABIN VERZOLA HERMOSO & LAYAOEN LAW

OFFICES26th Floor, Pacific Star Bldg.

Gil Puyat Ave. cor. Makati Ave.Makati City

Tel. No. 817-7717

By:

PACIFICO A. AGABINRoll No. 16609/06.07.61

PTR No. 0385207/01.31.07/MakatiIBP Life Roll No. 251

CLEOFE B. VILLAR-VERZOLA

Roll No. 15279/01.26.61PTR No. 0385208/01.31.07/Makati

IBP Life Roll No. 04792

ANNA LIZA G. LOGANRoll No. 42751/05.05.98

PTR No. 0385206/01.31.07/MakatiIBP No. 701090/01.05.07/Makati



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NOTICE OF HEARING

OFFICE OF THE SPECIAL PROSECUTORSandiganbayan, Centennial BuildingQuezon City

G r e e t i n g s :

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 PROSECUTORSandiganbayan, Centennial BuildingQuezon City

ejercito-mot. for recon.9.20.07

Documents

REPUBLIC OF THE PHILIPPINES - WordPress.com · Web viewPeople, 392 SCRA 46, 52-53 (2002); Garcia v. Court of Appeals, 368 SCRA 22, 228-30 (2001). In the instant case, there is even