NOTES FOR THE SPECIAL PROSECUTOR FOR THE PLUNDER CLOSING STATEMENT

Published September 10, 2007 3:59pm

For lack of time, we have made the following observations based only on a cursory look at the accusedâ€™s Memoranda. Accused Joseph Estradaâ€™s Memorandum is quite long on legalese and discussions on issues already moot, but is short and barren of supporting evidence. No amount of legal jargon and dramatics, with which the defense tries to swamp the Honorable Court, can overcome the overwhelming evidence on record showing with absolute certainty the guilt of the accused, and the paucity of that which allegedly shows innocence. That the prosecution has presented more than enough evidence to convict accused Joseph Estrada of Plunder is not just a claim that we make, it is what the Honorable Court said in its Resolution dated 17 March 2004, which denied accused Joseph Estradaâ€™s Motion for Leave to File Demurrer to Evidence. Now, the next question is, has the accused been able to rebut the evidence presented by the prosecution? NO. Even after accused Joseph Estrada was able to present most of his evidence, the Honorable Court, in evaluating said accusedâ€™s bid to be released on bail, ruled, in its Resolution dated 04 October 2005, that there is strong evidence of guilt presented by the prosecution, even sufficient to convict. And what about after accused Joseph Estrada himself took the witness stand? Still, apart from self-serving statements, claims constituting hearsay evidence and bare denials unsupported by any documentary proof, accused Joseph Estradaâ€™s testimony does not account for much. What the defense presented was an array of newspaper articles and publications which does not have any probative value for being hearsay. So, really, this closing statement is actually an opportunity for the accused to make gratuitous claims on something they failed to prove. FIRST SPECIFICATION: JUETENG PROTECTION RACKET

SECOND SPECIFICATION: MALVERSATION OF TOBACCO EXCISE FUNDS COLLECTED UNDER RA NO. 7171

1. Much concern is raised about the alleged security protocols being observed. Yet, if the recipient of the money was accused Joseph Estrada himself, would not forward arrangements be made to allow the delivery of funds to accused Joseph Estrada? Would the security personnel be in a position to countermand the wishes of the President? Certainly not. 2. The claim of accused Joseph Estrada that Gov. Singson allegedly made the exposÃ© because accused Joseph Estrada allegedly refused to help him with Gov. Singsonâ€™s alleged problems with the COA is belied by Exhibit â€œ138-B" of accused Joseph Estrada, which is the letter dated 08 December 2000 of Agustin Chan of the COA. The letter is dated one (1) day after the impeachment proceedings opened at the Senate. 3. Much reliance is also made by accused Joseph Estrada on the alleged various cases filed by Atty. Cordero against Gov. Singson. Yet, the fact is, these cases were filed only on the latter part of 2001, when the Plunder case had already been filed. Also, not even COA filed any case against Gov. Singson. Indeed such alleged cases filed by Atty. Cordero against Gov. Singson were eventually dismissed. 4. Accused Joseph Estrada again attempts to discredit Gov. Singson by the testimony of Carlos Saunar. Again, the incredibility of Saunar is undeniable. Saunar allegedly investigated the matter of diversion of public funds only after the exposÃ© made by Gov. Singson. Gov. Singson was the whistleblower. He pointed to accused Joseph Estrada as the criminal mastermind. Yet, who was being investigated? Gov. Singson. When was the investigation conducted? After the exposÃ© of Gov. Singson. Who ordered the investigation by the NBI? Then Justice Secretary Tuquero. Who was Tuquero? Accused Joseph Estradaâ€™s appointed Secretary of Justice. Did the NBI investigate accused Joseph Estrada as a logical consequence of Gov. Singsonâ€™s revelations? No. 5. Accused Joseph Estrada also claims that there is allegedly no evidence that the funds were deposited at Westmont Bank. The uncontroverted documents at Landbank show that the persons Delia Rajas and Jose Victor Tan Uy (alias Eleuterio Tan), who are closely connected with Atong Ang, withdrew P90 Million from Landbank and deposited the same at Westmont Bank. Further, Victor Jose Tan Uy as depicted in the photographs was identified by witness Caridad Rodenas as the person who introduced himself as Eleuterio Tan and who transacted with her personally in connection with the subject diversion of public funds. Victor Jose Tan Uy, as shown by the documents, was a business associate of Atong Ang. Incidentally, it was misleading for the defense to allege that P130 Million was withdrawn from Westmont Bank, using 4 boxes: only P90 Million was deposited, and thus only P90 Million was withdrawn from Westmont Bank. The other P40 Million was withdrawn in cash the day before from Landbank. 6. There is no serious dispute that Gov. Singson delivered One Hundred Thirty Million Pesos (P130,000,000.00) of tobacco excises allocated to Ilocos Sur to accused Atong Ang. Now, why would Gov. Singson deliver One Hundred Thirty Million Pesos (P130,000,000.00) of public funds belonging to his province to accused Atong Ang? After all, even a cursory review of the records would show that Gov. Singson had no prior close relationship with accused Atong Ang. In fact, what the evidence on record reveal is that they were â€œrivals" for the trust and confidence of the then President, accused Joseph Estrada. 7. A further examination of the records would show, as admitted by accused Joseph Estrada himself, accused Atong Angâ€™s long-time association with accused Joseph Estrada. Even accused Jinggoy Estrada admitted that Atong Ang was his friend. 8. Thus, there can be no reason why Gov. Singson would give money to accused Atong Ang, except in compliance with the earlier demand of accused Joseph Estrada, the release of which was ensured and made possible by his admitted marginal note (Exhibit â€œQ8-1") to then Budget Secretary Diokno. 9. If the diverted tobacco excise taxes were really for the benefit of Gov. Singson, there exists absolutely no rhyme or reason why he would share Twenty-Five Million Pesos (P25,000,000.00) of the One Hundred Thirty Million Pesos (P130,000,000.00) with accused Atong Ang. Gov. Singson could have simply used his own people, utilizing fictitious names, thus, keeping for himself the entire sum of One Hundred Thirty Million Pesos (P130,000,000.00). 10. What is more, accused Joseph Estrada claims that the Two Hundred Million Pesos (P200,000,000.00) in bribe/protection money deposited to the account of the ERAP Muslim Youth Foundation was not his but belonged to Gov. Singson. If this is true, and Gov. Singson had a problem with COA for One Hundred Thirty Million Pesos (P130,000,000.00), it would have been an easy matter for Gov. Singson to just use the TWO HUNDRED MILLION PESOS (P200,000,000.00) to cover the lesser amount of One Hundred Thirty Million Pesos (P130,000,000.00). May sukli pa. Simply, the theories of accused Joseph Estrada are illogical and do not make sense at all. 11. Finally, it must be remembered that there is documentary proof that it was accused Joseph Estrada who initiated the process of diversion of the public funds. As shown by the evidence, the processing for the release of the subject funds at the Department of Budget and Management was triggered by his marginal note to then Budget Secretary Diokno. After initiating the release of the funds, the process finally ended in accused Joseph Estrada receiving his â€œcut" of P70 Million, with the rest going to his son, wife and close associate. THIRD SPECIFICATION: P189.7 MILLION COMMISSION FROM PURCHASES OF BELLE CORPORATION SHARES BY THE SSS AND THE GSIS

1. Accused Joseph Estrada has only two (2) defenses in this regard, i.e.: (1) the purchases of the Belle Corporation shares were allegedly valid and regular; and (2) he allegedly did not profit from the transactions. For the sake of argument, the prosecution may concede, this claim that the purchases were regular. Does this make accused Joseph Estradaâ€™s receipt of P189,700,000.00 any less corrupt or any less criminal? There is no requirement under Section 1(d)(2) and 1(d)(6) of the Plunder Law, that the government contract be irregular or anomalous to constitute Plunder. 2. Even if his sole interest is to get a â€œcut" or commission from the sale of the Belle shares to GSIS and SSS which he commanded, it would still be Plunder under Section 1(d)(2) in relation to Section 1(d)(6) of RA No. 7080. Indeed, accused Joseph Estrada himself admitted in page 192 of his Memorandum that he initiated the purchase of the Belle shares. Why else would accused Joseph Estrada express so much interest in Belle and spend so much time and effort making several follow-ups with Messrs. Pascual and Arellano, if not for this expectation? There were other shares in other corporations, wherein no negative concerns were expressed, in the investment portfolios of SSS and GSIS, so why Belle? Remember that accused Joseph Estrada did not stop at telling Messrs. Pascual and Arellano to study the possibility of purchasing Belle shares â€“ accused Joseph Estrada saw to it that they did by several follows up and phone calls, both domestic and overseas, even stern reminders in meetings. There is no dispute that P189,000,000.00 was received and deposited into the Jose Velarde account. This amount represents the discount or lesser value at which SSS and GSIS could have bought the subject shares. 3. But then again, even if the intended purchases were seen to be improvident, SSS and GSIS obeyed the numerous calls and orders of accused Joseph Estrada. That the intended purchases were deemed improvident is evident from the study made by defense witness Rizaldy Capulong, as borne by Exhibit â€œ243" of the accused Joseph Estrada himself (the SSS Memorandum for the Executive Management Committee dated 17 November 1998 re: Recommendaion for the Purchase of Belle Corporation Shares). 4. Indeed, Mr. Capulong even characterized the Belle shares as no longer qualified stocks for investment. (TSN dated 14 February 2005, 9:20 a.m., page 75) The prior reservations expressed against investing in Belle shares were confirmed when, immediately after the purchase thereof, the prices actually plummeted very steeply. Specifically, the price of the Belle shares has dropped from P3.14 per share in October 1999 to P1.00 in 2000 or a loss of seventy percent (70%). (TSN dated 14 February 2005, 9:20 a.m., page 92) 5. Mr. Pascual was also not comfortable with the order of accused Joseph Estrada to purchase the Belle shares because the shares had a speculative flavor since Belle was involved in gambling. 6. The fact that Belle shares were purchased despite many serious reservations and grave concerns were confirmed by the very evidence submitted by accused Joseph Estrada. As reflected in accusedâ€™s very Exhibit â€œ235-G" (the Summary of GSIS Investments in Belle Corporation), the gain on sale column for 1999 and 2000 is blank, indicating that there were no gains on purchases of Belle shares in 1999 to 2000. Thus, there is no business reason to purchase them. 7. Another question comes to mind, since accused Joseph Estrada tends to put the blame on someone else â€“ Jaime Dichaves. We pose the question: Did Jaime Dichaves possess so much sway, power and influence so as to cause SSS and GSIS to do what they did? Jaime Dichaves was just a member of the Board of Directors of Belle Corporation. Admittedly, accused Joseph Estrada stated that it was Jaime Dichaves who brought the possibility of buying Belle shares. And why would accused Joseph Estrada help Jaime Dichaves and pester Messrs. Pascual and Arellano? Well, the trail of bank documents already show that there is P189,700,000.00 worth of reasons. FOURTH SPECIFICATION: THE JOSE VELARDE ACCOUNT

1. And who is Jose Velarde? Undoubtedly, he is Joseph Estrada. This is proved not only by prosecution evidence, but proven by the very submissions of accused Joseph Estrada. Incidentally, the accused claimed in his Memorandum (page 250) that Atty. Curato allegedly testified that Mr. Dichavesâ€™ lawyer allegedly informed the bank that the saving account belonged to Mr. Dichaves. When the query was posed, Atty. Curato actually said he had no personal knowledge of the allegation. 1 TSN dated 22 November 2001, p. 20 and 24. 2. Accused Joseph Estrada claims Jose Velarde is Jaime Dichaves. Yet, it is an established fact that the Jose Velarde account was referred by George Go to Mr. Dytang. (TSN dated 04 May 2005, page 17) Accused Joseph Estradaâ€™s very own witness, Romualdo Dytang, says so. Dytang also admits that he and Jaime Dichaves are relatives and would often see each other at birthday parties and social gatherings. (TSN dated 07 December 2005, page 22) If Jose Velarde is Jaime Dichaves, why then did Dichaves have to go through George Go and not straight to his very own relative, Dytang? Notice also Dichavesâ€™ signature in Exhibit â€œ127" of the defense. Itâ€™s common letters with that of â€œJose Velarde" are â€œj", â€œe", â€œs", â€œa" and â€œd". Yet, there is absolutely no similarity or slightest resemblance between the pen strokes for these letters as compared to the Jose Velarde signature appearing on the Signature Cards of the Jose Velarde combo account (Exhibit F19 and G19) which were submitted after the opening of the account. 3. We again remember George Go as the admitted banker of accused Joseph Estrada. The same George Go who introduced Atty. Fernando Chua to Ms. Clarissa Ocampo (TSN dated 13 November 2002, page 65); the same George Go who was a close friend of accused Joseph Estrada and the Treasurer and Trustee of the ERAP Muslim Youth Foundation (Exhibit â€œC10"), the account of which became the receptacle of Two Hundred Million Pesos (Php 200,000,000.00) worth of jueteng protection money. The same George Go who introduced Ms. Bagsit to Atty. Serapio in connection with the said P200 Million jueteng protection money. 4. Accused Joseph Estrada also contradicts himself when he claimed that Clarissa Ocampo knew and told him to sign â€œJose Velarde". If this is true, why then would Clarissa Ocampo, as testified to by accused Joseph Estrada, be surprised when accused Joseph Estrada signed as â€œJose Velarde"? Surely, Ms. Bagsit did not tell the truth when she claimed that the debit authority did not come from her but from the Trust Department headed by Ms. Ocampo. For, if, indeed, it came from the Trust Department, then, accused Joseph Estrada would not have claimed that Ms. Ocampo was surprised when he signed as Jose Velarde. Ms. Ocampo was surprised since the name Jose Velarde was not pre-written on the documents prepared by the Trust Deparment. 5. It may be true that Dichaves handled the Jose Velarde account. In fact, Bagsit characterized Dichaves as merely the handler of the account. But surely, Dichaves was merely the â€œrunner" of accused Joseph Estrada. Otherwise, as already stated, there would have been no need for George Goâ€™s intervention. 6. Accused Joseph Estrada harps on an alleged â€œinternal arrangement". Said accused also explains that Ms. Ocampo did not know about the alleged â€œinternal arrangement" because she was not in-charge of the account. And who were in-charge of the account? According to accused Joseph Estrada, Mr. Dytang and Ms. Bagsit. Yet, none of these witnesses even mentioned the existence of an alleged â€œinternal arrangement" during their testimonies. If such internal arrangement were true, it would have been an easy matter for accused Joseph Estrada to present bank officials in addition to Mr. Dytang and Ms. Bagsit, who would testify on such alleged â€œinternal arrangement". In fact, the very Affidavit of Mr. Dytang (which was marked and submitted by the accused themselves as their Exhibit â€œ327 up to 327-C"), prepared with the assistance of ACCRA lawyers, revealed that said witness admitted that he does not know if accused Dichaves â€œopened" the â€œJose Velarde" account for himself or for another person: â€œQ: Did he open it for himself or for another person? A: I do not know." (Exhibit â€œ327") 7. Accused Joseph Estrada also claims that the directional letter signed by said accused as Jose Velarde was not followed and used to fund the investment account, but instead an alleged managerâ€™s check funded by a withdrawal from the Jose Velarde savings account. This is immaterial and irrelevant and cannot detract from the fact that accused Joseph Estrada signed as Jose Velarde. Also, this claim is inconsistent with his claim of â€œinternal arrangement". For, if it is true that there was an â€œinternal arrangement", then, the bank would have honored, without question, the documents signed by him. Also, no evidence was presented by the defense to prove that accused Dichaves signed the application for the issuance of the alleged managerâ€™s check. The defense could have just asked for a subpoena duces tecum. More to the point, accused Joseph Estrada failed to explain or state such alleged â€œinternal arrangement" at the earliest opportunity. Indeed, he knew of the testimony of Ms. Ocampo as early as 22 December 2000. He admitted that he watched the impeachment proceedings on television. (See TSN dated 5 April 2005, page 59) Yet, even after Ms. Ocampo testified, i.e., on 22 December 2000 and thereafter, and even during the preliminary investigation afforded him in early 2001 and thereafter, accused Joseph Estrada failed to declare before the public that he signed as â€œJose Velarde" and that there was an alleged â€œinternal arrangement." 8. Accused Joseph Estrada would make a big issue out of the total deposits to the Jose Velarde account as allegedly not P3,233,104,173.17, but only P2,172,823,855.82. Lest accused Joseph Estrada forget, the prosecution need only prove the amount of at least P50,000,000.00. (Incidentally, the required amount for Plunder is P50 Million and not P75 Million as claimed by the defense. (See pages 22, 31, 49 of the Memorandum) In any event, the prosecution can concede for the sake of argument that accused Joseph Estrada, as for the Jose Velarde account, did not steal P3.2 Billion, but, according to accused Joseph Estradaâ€™s memorandum, he only stole P2.1 Billion. Incidentally, accused Joseph Estrada opposed the opening of the 2nd envelope during the Impeachment Trial because he was afraid that the documents would reveal that he stole P3.2 Billion. This grand larceny would have triggered a popular revolt. Unfortunately for him, its non-opening triggered mass demonstrations. 9. Then there is the matter of accused Joseph Estradaâ€™s special assistant -- Baby Ortaliza. Accused Joseph Estrada claims that the prosecution did not present her. But, accused Joseph Estrada did not deny his special relationship with Baby Ortaliza. Neither did accused Joseph Estrada deny the deposits in millions Ortaliza made into the Jose Velarde account and other bank transactions she did for him. It was, therefore, accused Joseph Estradaâ€™s burden to present her to disprove the evidence presented by the prosecution with the prima facie case finding. But he did not. Incidentally, a nagging question is why did she resign after Gov. Singson made his exposÃ©? 10. Finally, accused Joseph Estrada assails the sufficiency of the evidence of the prosecution claiming that the same are mostly circumstantial and, therefore, allegedly not enough to prove guilt beyond reasonable doubt. Accused Joseph Estrada is in error. To quote the Supreme Court in the very recent 2007 case of People vs Padua, G.R. No. 169075, 23 February 2007: . Direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community. Also, in People vs. Ramos, 240 SCRA 191, 196 (1995), the Supreme Court held: â€œIt ought to be noted that our rules â€˜make no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainy is required when the evidence is circumstantial than when it is direct, for in either case, the trier of fact mus be convinced beyond a reasonable doubt of the guilt of the accused. ON ACCUSED JINGGOY ESTRADA AND EDWARD SERAPIO Accused Jinggoy Estrada, for his part, would admit that Atong Ang is his friend. But deny that they ever met in his office (TSN dated 17 November 2004, page 98) â€“ a matter belied by accused Jinggoy Estradaâ€™s own Secretary, Rosemarie San Gregorio. (TSN dated 24 November 2004, page 91) Accused Jinggoy Estrada and Edward Serapio are partly correct and partly wrong. They seem to forget that even the respective Resolutions of the Honorable Court allowing them to post bail made a finding that they, in fact, had some degree of substantial participation in the subject criminal activity. The only issue was whether their degree of participation would merit the imposition of capital penalty as to make bail unavailable. Parenthetically, accused Serapio never took the witness stand; thus, Gov. Singsonâ€™s testimony with respect to him remains totally unrebutted. Thus, even conceding the fact that the prosecution may not have presented additional evidence against Jinggoy Estrada and Edward Serapio, still, their guilt and criminal liability is undeniable. Indeed, under the Plunder Law: â€¦ Any person who participated with said public officer in the commission of an offense contributing to the crime of Plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. ALLEGED POLITICAL DEFENSE AND OTHER MOOT ISSUES 1. Even assuming the defense is available as a matter of legal proposition, still, accused Joseph Estrada failed to prove the alleged existence of a grand conspiracy. Accused Joseph Estrada charged certain Generals and government officials with conspiracy. But what has he shown for it? Articles in the papers; hearsay testimonies; bare allegations. Accused Jinggoy Estrada even cannot point to the alleged elite and civil society members who are allegedly part of it. Incidentally, in the Legitimacy Case, all of accused Joseph Estradaâ€™s appointees to the Supreme Court voted to deny due course to his Petition. Also, in the Plunder Law Case, accused Joseph Estrada cited then Justice Kapunan as one of those who dissented. Truth to tell, Justice Kapunan should have inhibited himself. His son-in-law appeared in the Impeachment Case on the side of accused Joseph Estrada, being an associate of his principal counsel. 2. The members of the civil society may be in flux, and may have gone from one end of the political spectrum to the other, yet, even those who protested against accused Joseph Estrada and who have shied away from the present administration, have not claimed that there is a lack of evidence against accused Joseph Estrada. Indeed, they cannot, as even the Honorable Court confirmed the presence of evidence enough to convict. FINAL POINTS The Constitution mandates a speedy trial for the accused. Ironically, however, it was the prosecution that has insisted on the speedy trial for the accused in this case; while the defense has continually complained of the alleged haste in the proceedings. In all my more than twenty (20) years as prosecutor, and five (5) years as a heinous crimes court judge, it is my experience that the innocent insist on speedy trial, while delay is resorted to by the guilty. Before the bar of justice, it matters not if the person accused is rich or poor, popular or unknown, a former President or a BIR clerk. None of these matter. ONLY THE EVIDENCE. The first person convicted of Plunder is a lowly clerk (Dominga Manalili). THE EVIDENCE IN THE INSTANT CASE SUSTAINS, WITH ABSOLUTE CERTAINTY, A SECOND. To paraphrase one of the lawyers of the accused, justice should be administered with an even hand and without an evil eye.