Strike 2 vs gov’t lawyers
Faced with the very real possibility of Sen. Jinggoy Estrada walking out of his rat-and-cockroach-infested cell, government prosecutors on Friday withdrew their motion to amend the plunder information against him to make him the central figure in the embezzlement of hundreds of millions of pesos in public funds instead of businesswoman Janet Lim-Napoles.
As a result, Estrada will be arraigned next Monday for plunder based on the original charges filed by the Ombudsman on June 6.
It was the second time for state prosecutors in the P10-billion pork barrel scam cases to fall flat on their faces with their last-minute efforts to remedy an ambiguity in the information they had filed against Estrada and Senators Bong Revilla and Juan Ponce Enrile that pictured Napoles, an ordinary citizen, as the principal in the plunder cases, with the lawmakers merely receiving kickbacks from her.
Plunder is an offense that can be brought only against public officials who amass at least P50 million in ill-gotten wealth.
Bail is not allowed in plunder cases.
On Thursday, the Sandiganbayan’s First Division junked the prosecutors’ amendments to the plunder case against Revilla because the proposed changes would alter the court’s finding that there was probable cause to make the senator stand trial, the reason it ordered his arrest and detention. The revision would have resulted in Revilla being ordered released from jail.
As if they learned nothing from that debacle, the prosecutors on Friday proceeded to argue in the Fifth Division for amendments to Estrada’s case—only to be lectured by the justices on legal terminology.
The prosecutors were forced to withdraw their amended plunder information against Estrada and his three coaccused after the justices warned them that they would have to order the senator released from detention once the basis for the court’s order to arrest him was revised.
Associate Justices Roland Jurado and Alexander Gesmundo of the Fifth Division, which handles the consolidated plunder and graft cases against Estrada and 25 coaccused, lectured the prosecutors on the implications of amending the plunder charges.
The amended information that the prosecution introduced this week would have Estrada as the principal gainer in the pork barrel scam, pocketing P183.7 million in kickbacks from Napoles, the alleged brains behind the P10-billion pork barrel scam.
Jurado, the division chair, and Gesmundo pointed out that the court found probable cause to order the arrest of Estrada and his coaccused based on the the original charges filed by the Ombudsman.
Without the basis for the finding of probable cause, there would be no basis for the arrest, according to the justices.
“If I were you I would not amend the information,” Jurado told the prosecutors while defense lawyers listened during a court hearing on Friday morning.
“We are just warning you of the effect of (amending) the information. The accused will be released. If we amend that, Estrada will be released,” Jurado continued.
Lead prosecutor Danilo Lopez, who was defending the amended information before the justices, gave up upon hearing that.
“If that is the case, we are withdrawing our manifestation of motion to amend information,” Lopez said.
Different legal concepts
Before the exchange, Gesmundo asked Lopez why the element of “conspiracy” disappeared in the amended information against Estrada.
Lopez replied that the prosecutors changed “conspiracy” with “connivance,” as the two words were “interchangeable.”
Gesmundo came back, pointing out that the two words conveyed different legal concepts.
Unlike connivance, Gesmundo said, conspiracy implicates all the accused for the acts committed by each one under the doctrine “the act of one is the act of many.”
“This is a criminal indictment so every word in the information must be precise,” Gesmundo said.
“What will happen to Napoles, who is a private individual, [when] there is no more conspiracy?” Jurado asked Lopez.
With no answer coming immediately from the lead prosecutor, Jurado proceeded to tell him it was possible for Napoles to gain relief should the conspiracy charge against her be lowered to collaboration.
Napoles’ camp argued that she cannot be charged with plunder because she is an ordinary citizen.
The original plunder information accused Estrada and his deputy chief of staff, Pauline Therese Labayen, of “conspiring with one another and with Napoles and her driver-bodyguard John Raymund de Asis (to) willfully, unlawfully and criminally amass, accumulate and/or acquire ill-gotten wealth amounting to at least P183.7 million.”
It charged that Napoles gave Estrada or Labayen or both received a percentage of the cost of a project funded from the senator’s allocations from the Priority Development Assistance Fund (PDAF) in exchange for his endorsement of the ghost projects to the implementing government agencies.
For the amendment, prosecutors wanted to delete the phrase “thus enabling Napoles to misappropriate the PDAF proceeds for her personal gain.”
The prosecutors also wanted to rephrase the introductory paragraph of the information “to emphasize that the senator was the one who amassed, accumulated and acquired ill-gotten wealth in connivance or in conspiracy with his coaccused public officer and private individuals.”
They also wanted to include the phrase that Estrada enriched himself through kickbacks and commissions “by exerting undue pressure on the implementing agencies to favorably act on his endorsement of the NGOs (nongovernment organizations) of Napoles to ensure that his PDAF will be in the possession and control of Napoles and her cohorts.”
Cases may be thrown out
Legal commentators have said the prosecution’s error has weakened the case, raising the possibility of their cases being thrown out.
Some of the commentators have said, however, that the prosecution’s attempt to amend the information is aimed at picturing Napoles as not the guiltiest, which will enable the state to use her as witness, bolstering the cases against the three senators.
Asked on Friday whether Napoles would get immunity in exchange for her testimony against the three senators, her lawyer Bruce Rivera said her camp still hoped the Ombudsman would reconsider its rejection of her request to be made a state witness.
“We are praying for them to change their minds,” Rivera said in a text message.
“We cannot speculate whether the position of the Ombudsman is better for Janet Lim-Napoles or not because she is still an accused in the case. If the shift is toward the lawmaker as the mastermind of the scam, that has always been our position,” he said.
Lawyer Levito Baligod, a private complainant in the plunder cases, said the rejection of the amendments would not change the case.
“She remains one of the principal conspirators,” Baligod said.
Newly appointed Sandiganbayan Associate Justice Maria Theresa Gomez-Estoesta took part in the Fifth Division hearing for the first time on Friday. She was appointed on Monday.
The Fifth Division announced it would decide on Estrada’s request for bail based on the written petitions.
Estrada will be arraigned for plunder next Monday along with Labayen, Napoles and De Asis.
Estrada is also accused of 11 counts of graft along with 25 others.
Despite the two consecutive failures, the prosecution will try to convince the Third Division next Tuesday to allow it to amend the plunder information against Enrile.
The court has yet to decide whether there is probable cause to send Enrile, his former chief of staff Jessica Lucila “Gigi” Reyes and Napoles to trial and order their arrest.
Enrile is accused of pocketing P172 million in kickbacks from Napoles’ phantom, pork barrel-funded projects.
The Senate minority leader also faces 11 counts of graft with 48 coaccused, including Reyes and Napoles.
Napoles will be arraigned again next Monday, this time with Estrada. She was arraigned in the First Division on Thursday in the case involving Revilla, who is accused of embezzling P224.5 million in public funds in connivance with the businesswoman.
Napoles’ lawyer Stephen David said he wanted the arraignment to proceed because he believed the case had been shown to be weak by the prosecution’s attempt to revise the charges.
Justice Secretary Leila de Lima rejected that view, saying the information was “sufficient.”
Speaking to reporters in Bacolod City, De Lima said the Ombudsman tried to amend the charges to make them clearer.
“It is clarificatory to preclude or obviate any perceived ambiguity,” she said.
De Lima said she remained confident the government’s evidence was sufficient to prove plunder in the cases against Revilla and Estrada. With reports from Gil C. Cabacungan in Manila and Carla P. Gomez, Inquirer Visayas