REPUBLIC OF THE
-----
PEOPLE
OF THE
Plaintiff,
- versus - CRIM.
CASE NO. 26905
JOSEPH
EJERCITO ESTRADA,
Accused.
PRESENT:
DE CASTRO, PJ., Chairperson
VILLARUZ,
JR., and
PERALTA, JJ.
PROMULGATED:
September 12, 2007
X
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -
- - - - - - - - - - - - - - - - X
The accused, former President Joseph
Ejercito Estrada, is charged with the crime of Perjury defined in and penalized
by Article 183 of the Revised Penal Code in an Amended Information docketed as
Criminal Case No. 26905 which reads as follows:
That on
or about 29 April 1999, in the City of Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being then the
President of the Republic of the Philippines, taking advantage of his official
position and committing the offense in relation to office, being then required
by law to file a Statement of Assets, Liabilities and Networth [SALN], did then
and there willfully, unlawfully and feloniously state in his SALN for the year
ending 31 December 1998, which he executed under oath before a notary public
and filed as required by R.A. 6713, that his total assets were P37,385,307.08
including P5,035,363.40 of cash in hand and in bank, and that this business
interests were only in JELP Real Estate and Dev. Corp., J.E. Inc. and Feluisa
Dev. Corp., which material statements are false and untruthful, as he had by
then much more assets, including P57,106,201.40 cash in three (3) banks
accounts alone, namely: P44,268,442.68 with Keppel Bank; P548,121.84 with ASIA
UNITED Bank; and, P12,289,636.88 with Security Bank, as well as other corporate
holdings and connections with the following corporations, namely, First LPL
Land Syndication, Inc.; Asis-Ejercito Garments, Inc.; 24K International Food,
Inc.; Alpha Funds, Inc.; Prime Entertainment for Television Production, Inc.;
ADE Food, Inc.; Electronic Sentry Systems, Inc.; All Hot Soup, Inc.; F.E.L.T.
Food Services.
CONTRARY TO LAW.
Before
the Court acquired jurisdiction over the person of accused former President
Joseph Ejercito Estrada, the Supreme Court, in Adm. Matter No. 02-1-07-SC, resolved
to create a Special Division in the Sandiganbayan to hear, try and decide the
Plunder case and all related cases against the said accused pursuant to the
recommendation of the Oversight Committee of the Supreme Court. The Supreme
Court resolution was in response to the request of the Sandiganbayan that
promulgated its Resolution No. 01-2002 on January 8 and 11, 2002 with respect
to the Request for Re-Raffle of the defense counsel and the Opposition to
Request for Re-Raffle of the Special Prosecution Panel.
When
the case was set for arraignment, accused former President Joseph Ejercito
Estrada moved to reset the same and simultaneously filed a Motion to Quash on
the following grounds, to wit: 1) the facts charged in the Information do not
charge an offense; 2) the officer who prematurely filed the Information had no
authority to do so; 3) the Information impermissibly charges more than one
offense; and 4) it arbitrarily splits the complaint because of the persistence
of the prosecution in disrespecting the interdiction that [n]o person shall be
twice put in jeopardy for the same offense, while at the same time pursuing
what it calls the main charge for Plunder, seeking disingenuously to deprive
accused of the valuable right of invoking double jeopardy, res judicata
dressed in prison grey.[1]
On
March 6, 2002, the Court resolved to deny accused former President Joseph
Ejercito Estradas Motion to Quash. On
the points raised by the accused in his Motion to Quash, the Court ruled[2] as
follows:
The
information is not duplicitous. It
charges accused only of one offense perjury.
This is evident in the title and body of the information. The fact that the same mentions R.A. 6713 does not make it duplicitous. As the Court sees, R.A. 6713 is mentioned
only by way of reference to show compliance that the fourth element of the
crime charged has been alleged in the information.
xxx xxx xxx.
Section 3
of Rule 117 of the 2000 Rules of Criminal Procedure enumerates the grounds upon
which an information or complaint may be quashed. These grounds are exclusive and no other
ground can be considered except those as mentioned in the aforecited
section. As splitting is not one of
those specified in said section, we cannot consider it.
xxx xxx xxx.
On the ground of double jeopardy,
the arguments of the accused fail to convince us of its presence.
The
requisites that must concur for a legal jeopardy to attach are: (a) a valid
complaint or information; (b) a court of competent jurisdiction; (c) the accused
has pleaded to the charge; and (d) the accused has been convicted or acquitted
or the case dismissed or terminated without the express consent of the accused
(Dela Rose vs. Ca, 253 SCRA 499). In the
instant case, the fourth element is noticeably lacking. The first jeopardy has not yet attached, as
there is no conviction, acquittal, dismissal or termination of the case without
the consent of the accused to speak of.
WHEREFORE,
all the foregoing, the instant motion is DENIED for lack of merit.
Consequently, arraignment proceeded with accused,
assisted by counsel de oficio, refusing to enter any plea. Hence, in accordance with the Revised Rules
of Criminal Procedure, the Court entered a plea of Not Guilty on his
behalf. The case was then set for
pre-trial conference and the prosecution and the accused were directed to file
their corresponding pre-trial briefs on or before the said date.
During
the pre-trial conference on April 22, 2002, counsels de oficio for
accused former President Joseph Ejercito Estrada reiterated their Manifestation
filed during the pre-trial in Criminal Case No. 26565 (for Illegal Use of
Alias) involving the same accused as follows:
A. Facts of the case
x x x
They are not in a position to
intelligently enter into any stipulation or admission because the accused does
not want to be represented by any counsel hence, they were not able to confer
with him regarding this case.
B. Testimonial
and Documentary Evidence
The undersigned hereby respectfully
manifest that at this time, they cannot make proper listing of witnesses and
documentary exhibits because of non-cooperation of the accused.
C. Defense
Also the undersigned are not in a
position to state the defense because of the non-conference of the accused.
On
the other hand, the prosecution marked the following documentary exhibits:
EXHIBITS DESCRIPTION
A Sworn Statement of Assets,
Liabilities, and Net Worth of accused Joseph Ejercito Estrada and Luisa P.
Ejercito as of 31 December 1998
B Certified True Copy (CTC) of
Keppel Bank Signature Card of Account No. 6007-005-7-9 of accused Joseph
Ejercito Estrada dated 10 August 1990
B-1 Keppel Bank Statement of Account
No. 6007-00057-9
B-2 Certification of Balance of
Account No. 6007-00057-9 as of 31 December 1998
C Security Bank Signature Card
of Account Nos. 0091-203796-550, 0091-203796-554, and 0091-203796-559 of
accused Estrada
C-1 CTC of Security bank Passbook
No. 544552
C-2 CTC of Investment Savings
Account (ISA) agreement of Security bank dated 21 April 1998
C-3 CTC of ISA agreement dated 21
May 1998
C-4 CTC of ISA agreement dated 22
June 1998
C-5 CTC of ISA agreement dated 23
September 1998
C-6 CTC of ISA ledger covering the
period from 26 October 1998 to 25 November 1998
C-7 CTC of ISA ledger covering the
period from 28 December 1998 to November 1999
C-8 CTC of ISA ledger covering the
period from 7 January 2000 to 11 December 2000
C-9 CTC of Confirmation of
C-10 CTC of CS No. 83099
C-11 CTC of CS No. 83952
C-12 CTC of CS No. 85007
C-13 CTC of Cs No. 85571
C-14 CTC of CS No. 85761
C-15 CTC of CS No. 86099
C-16 CTC of Security Bank confirmation
of Sale No. 81046 dated 10 April 1997
C-17 CTC of Security Bank Passbook No.
544581
C-18 CTC of ISA agreement dated 29
April 1998
C-19 CTC of ISA agreement dated 2
October 1998
C-20 CTC of ISA ledger as of 3 November
1998
C-21 CTC of ISA ledger covering the
period from 3 December 1998 to 11 November 1999
C-22 CTC of ISA ledger covering the
period from 13 December 1999 to 17 November 2000
C-23 CTC of ISA ledger covering the
period from 19 December 2000 to 18 January 2001
C-24 CTC of Transaction History Enquiry
of Account No. 0091-203796-554 dated 12 February 2001
C-25 CTC of Security Bank Passbook No.
580913
C-26 CTC of ISA agreement dated 8 June
1998
C-27 CTC of ISA agreement dated 7
October 1998
C-28 CTC of ISA ledger as of 6 November
1998
C-29 CTC of ISA ledger covering the
period from 9 December 1998 to 15 November 1999
C-30 CTC of ISA ledger covering the
period from 15 December 1999 to 17 November 2000
C-31 CTC of ISA ledger covering the
period from 19 December 2000 to 18 January 2001
C-32 CTC of Transaction History Enquiry
of Account No. 0091-203796-59
C-33 Affidavit of Eunice Cuyu-Domingo
C-34 Photocopy of Security Bank ISA
placement
D CTC of Signature Card of Asia
United Bank (AUB) Account No. 001-01-000588-8 of accused Estrada
D-1 CTC of Customer Information
Sheet of AUB Account No. 001-01-00588-8 dated 3 November 1999
D-2 CTC of Statement of Account of
AUB Account No. 001-01-000588-8
D-3 Certification of Balance of AUB
Account No. 001-01-000588-8 as of 31 December 1998
G Certificate of Registration
of First LPL Land Syndication, Inc. dated 21 July 1995
G-1 Articles of Incorporation of
First LPL Land Syndication, Inc. dated 14 July 1995 consisting of eleven (11)
pages
G-1-a Name of Dra. Luisa Ejercito with the
corresponding number of subscribed shares thirty-five thousand seven hundred
fourteen (35,714) amounting to Three Million Five Hundred Seventy-one Thousand
Four Hundred (P3,571,400) Pesos on page 6 of Exhibit G-1
G-1-b Name of Dra. Luisa Ejercito with the
corresponding paid-up amount of One Million (P1,000,000.00) Pesos on page 7 of
Exh. G-1
G-1-c Signature of Dra. Luisa Ejercito on
page 8 of Exh. G-1
G-2 By-Laws of First LPL Land
Syndication, Inc. dated 14 July 1995 consisting of thirteen (13) pages
G-2-a Signature of Dra. Luisa P. Ejercito
on page 13 of Exh. G-2
H Certificate of Registration
of Asis-Ejercito Garments, Inc. dated 24 September 1990
H-1 Articles of Incorporation of
Asis-Ejercito Garments, Inc. dated 10 September 1990 consisting of eleven (11)
pages
H-1-a Name of Jacqueline P. Ejercito with
the corresponding number of subscribed shares six hundred ten (610) amounting
to Sixty-one Thousand (P61,000.00) Pesos appearing on page 6 of Exh. I-1
H-1-b Name of Luisa P. Ejercito with the
corresponding number of subscribed shares amounting to one thousand (P1,000.00)
Pesos appearing on page 6 of Exh. I-1
H-1-c Name of Jacqueline P. Ejercito with
the corresponding amount paid-up of Fifteen Thousand Two Hundred fifty
(P15,250.00) Pesos appearing on page 7 of Exh. I-1
H-1-e Signature of Jacqueline P. Ejercito
appearing on page 8 of Exh. I-1
H-1-f Signature of Luisa P. Ejercito
appearing on page 8 of Exh. I-1
H-2 By-Laws of Asis-Ejercito
Garments, Inc. dated 10 September 1990 consisting of thirteen (13) pages
H-2-a Signature of Jacqueline P. Ejercito
appearing on page 13 of Exh. I-2
H-2-b Signature of Luisa P. Ejercito
appearing on page 13 of Exh. I_2
I Certificate of Registration
of 24 K International Food, Inc. dated 4 May 1988
I-1 Articles of Incorporation of
24 K International Food, Inc. dated 22 April 1988 consisting of nine (9) pages
I-1-a Name of Luisa P. Ejercito with the
corresponding number of subscribed shares of one thousand (1,000) amounting to
One Hundred Thousand (P100,000.00) Pesos appearing on page 5 of Exh. K-1
I-1-b Name of Luisa P. Ejercito with the
corresponding paid-up amount of Twenty-five Thousand (P25,000.00) Pesos
appearing on page 6of Exh. K-1
I-1-c Signature of Luisa P. Ejercito
appearing on page 6 of Exh. K-1
I-2 By-laws of 24 K International
Food, Inc. dated 22 April 1988 consisting of seventeen (17) pages
I-2-a Signature of Dra. Luisa P.
Ejercito appearing on page 17 of Exh. K-2
J Certificate of Registration
of Alpha Funds, Inc. dated 6 October 1987
J-1 Articles of Incorporation of
Alpha Funds, Inc. dated 7 September 1987 consisting of eleven (11) pages
J-1-a Name of accused Estrada with the
corresponding subscribed amount of One Million (P1,000,000.00) Pesos out of
which Two Hundred Fifty Thousand (P250,000.00) Pesos was paid-up appearing on
page 7 of Exh. L-1
J-1-b Signature of accused Estrada
appearing on page 9 of Exh. L-1
J-2 By-laws of Alpha Funds, Inc.
dated 7 September 1987 consisting of nineteen (19) pages
J-2-a Signature of accused Estrada
appearing on page 18 of Exh. L-2
K Certificate of Registration
of Primetime Entertainment for Television (Pentel) Productions, Inc. dated 26
September 1986
K-1 Articles of Incorporation of
Primetime Entertainment for Television (Pentel) Productions, Inc. dated 8
September 1986 consisting of seven 97) pages
K-1-a Name of Jinggoy Estrada with the
corresponding number of subscribed shares of five hundred eighty (580)
amounting to Fifty-eight Thousand (P58,000.00) Pesos appearing on page 4 of
Exh. M-1
K-1-b Name of Luisa P. Ejercito with the
corresponding number of subscribed shares of twenty (20) amounting to Two
Thousand (P2,000.00) Pesos appearing on page 4 of Exh. M-1
K-1-c Name of Jacqueline Ejercito with
the corresponding number of subscribed shares twenty (20) amounting to Two
Thousand (P2,000.00) Pesos appearing on page 4 of Exh. M-1
K-1-d Name of Jinggoy Estrada with the
corresponding paid-up amount of Fourteen Thousand five Hundred (P14,500.00) Pesos
appearing on page 4 of Exh. M-1
K-1-e Name of Luisa P. Ejercito with the
corresponding paid-up amount of Five Hundred (P500.00) Pesos appearing on page
4 of Exh. M-1
K-1-f Name of Jacqueline Ejercito with
the corresponding paid-up amount of Five Hundred (P500.00) Pesos appearing on
page 4 of Exh. M-1
K-1-g Signature of Jinggoy Estrada
appearing on page 5 of Exh. M-1
K-1-h Signature of Luisa P. Ejercito
appearing on page 5 of Exh. M-1
K-1-i Signature of Jacqueline Ejercito
appearing on page 5 of Exh. M-1
K-2 By-laws of Primetime
Entertainment for Television (Pentel) Productions, Inc. dated 8 September 1986
consisting of seven (7) pages
K-2-a Signature of Jinggoy Estrada
appearing on page 7 of Exh. M-2
K-2-b Signature of Luisa P. Ejercito
appearing on page 7 of Exh. M-2
K-2-c Signature of Jacqueline Ejercito
appearing on page 7 of Exh. M-2
L Certificate of Incorporation
of A D E Food, Inc. dated 2 August 1984
L-1 Articles of Incorporation of A D
E Food, Inc. dated 13 July 1984
consisting of ten (10) pages
L-1-a Name of accused Estrada with the
corresponding number of subscribed shares four hundred twenty-five (425)
amounting to Forty-two Thousand Five Hundred (P42,500.00) Pesos out of which
Seventeen Thousand (P17,000.00) Pesos was paid-up appearing on page 7 of Exh.
N-1
L-1-b Name of Dra. Luisa P. Ejercito with
the number of subscribed shares four hundred twenty-five (425) amounting to
Forty-two Thousand Five Hundred (P42,500.00) Pesos out of which Seventeen
Thousand (P17,000.00) Pesos was paid-up appearing on page 7 of Exh. N-1
L-1-c Signature of accused Estrada
appearing on page 8 of Exh. N-1
L-1-d Signature of Dra. Luisa P. Ejercito
appearing on page 8 of Exh. N-1
L-2 By-laws of A D E Food, Inc.
dated 13 July 1984 consisting of eight (8) pages
L-2-a Signature of accused Estrada on
page 7 of Exh. N-2
L-2-b Signature of Dra. Luisa P. Ejercito
on page 7 of Exh. N-2
L-3 General Information Sheet of ADE
Food, Inc. as of January 1987 consisting of two (2) pages
M Certificate of Incorporation
of Electronic Sentry Systems, Inc. dated 28 July 1983
M-1 Articles of Incorporation of
Electronic Sentry Systems, Inc. dated 31 May 1983 consisting of eight (8) pages
M-1-a Name of accused Estrada with the
corresponding number of subscribed shares three hundred (300) amounting to
Thirty Thousand (P30,000.00) Pesos appearing on page 6 of Exh. O-1
M-1-b Name of accused Estrada with the
corresponding paid-up amount of Seven Thousand Five Hundred (P7,500.00) Pesos
appearing on page 7 of Exh. O-1
M-1-c Signature of accused Estrada
appearing on page 7 of Exh. O-1
M-2 By-laws of Electronic Sentry
Systems, Inc. as of 31 May 1983 consisting of eleven (11) pages
M-2-a Signature of accused Estrada
appearing on page 10 of Exh. O-2
N Certificate of Registration
of All Hot Soup, Inc. dated 1 September 1983
N-1 Articles of Incorporation of All
Hot Soup, Inc. dated 24 August 1983 consisting of ten (10) pages
N-1-a Name of accused Estrada with
corresponding number of subscribed shares four hundred (400) amounting to Forty
Thousand (P40,000.00) Pesos out of which Ten Thousand (P10,000.00) Pesos was
paid-up appearing on page 7 of Exh. P-1
N-1-b Name of Dra. Luisa P. Ejercito with
the corresponding number of subscribed shares one hundred fifty (150) amounting
to Fifteen Thousand (P15,000.00) Pesos appearing on page 7 of Exh. P-1
N-1-c Name of Dra. Luisa P. Ejercito with
the corresponding paid-up amount of Three Thousand Seven Hundred Fifty
(P3,750.00) Pesos appearing on page 8 of Exh. P-1
N-1-d Signature of Dra. Luisa P. Ejercito
appearing on page 8 of Exh. P-1
N-2 By-laws of All Hot Soup, Inc.
dated 24 August 1983 consisting of eleven (11) pages
N-2-a Signature of accused Estrada on
page 10 of Exh. P-2
N-2-b Signature of Dra. Luisa P. Ejercito
on page 10 of Exh. P-2
N-3 General Information Sheet of All
Hot Soup, Inc. as of January 1987 consisting of two (2) pages
O Certificate of Registration
of F.E.L.T. Food Services, Inc. dated 12 July 1978
O-1 Articles of Incorporation of
F.E.L.T. Food Services, Inc. dated 5July 1978 consisting of ten (10) pages
O-1-a Name of accused Estrada with the
corresponding number of subscribed shares forty (40) amounting to Four Thousand
(P4,000.00) Pesos appearing on page 7 of Exh. J-1
O-1-b Name of accused Estrada with the
corresponding paid-up amount of one thousand (P1,000.00) Pesos appearing on
page 8 of Exh. J-1
O-1-c Signature of accused Estrada
appearing on page 8 of Exh. J-1
O-2 General Information Sheet of
F.E.L.T. Food Services, Inc. dated 2 October 1978
O-3 Certificate of Filing of By-laws
of F.E.L.T Food Services, Inc. dated 2 October 1978
O-4 By-laws of F.E.L.T. Food Services,
Inc. dated 13 July 1978 consisting of fourteen (14) pages
O-4-a Signature of accused Estrada on page
13 of Exh. J-4
As issues, the prosecution laid down
the following:
1. Whether accused Joseph Ejercito Estrada
has cash on hand and in bank more than P5,035,363.40 as of 31 December 1998;
2. Whether accused Joseph Ejercito Estrada
has business interests or corporate holdings and connections in corporations
aside from JELP Real Estate and Development Corporation, J.E. Incorporated and
Feluisa Development Corporation.[3]
The
pre-trial conference thereafter was declared terminated. Subsequently, the prosecution started the
presentation of its evidence-in-chief.
When it had rested and upon admission of its exhibits, accused former
President Joseph Ejercito Estrada filed his motion for leave to file demurrer
to evidence, which the Court granted in a Joint Resolution promulgated on March
17, 2004.
On March 30, 2004, accused former President
Joseph Ejercito Estrada filed his demurrer to evidence in the instant case but
the same was denied in the Joint Resolution of the Court promulgated on July
12, 2004. In denying accused former
President Joseph Ejercito Estradas demurrer to evidence in the instant case,
the Court held, among other things, that:
The
alleged P50 Million is covered by documents B14-4, D14-12,
C14-6, E14-1, J15 up to R15, B14 up
to B14 to B14-5; C14-24 up to C14-8; C14-9 up to C14-16; C14-17 up to C14-24 up
to C14-28-B which were identified by Atty. William Chua (of Asia United Bank),
Salvador Serrano (of Security Bank) and Renato A. Balatbat (of Keppel
Bank). Movants explanations (or lack
thereof) in his demurrer to evidence seem insufficient to overcome the prima
facie evidence against him for perjury.
It is imperative, therefore, that he presents countervailing
evidence. (emphasis supplied)
xxx xxx xxx
On the other hand, accused-movant
Joseph Ejercito Estradas DEMURRER TO EVIDENCE in Criminal Case No. 26905
(Perjury) dated 30 March 2004 is DENIED for lack of merit. If he so desires, he may present his evidence
at 9:00 oclock in the morning of July 12 and 14, 2004 and every Monday and
Wednesday thereafter at the Sandiganbayan Building, Quezon City.[4]
Accused
Joseph Ejercito Estrada eventually moved for reconsideration of the said Joint
Resolution, but the same was denied by the Court per its Resolution of
September 3, 2004.[5] Thereafter, accused former President Joseph
Ejercito Estrada commenced the presentation of his evidence-in-chief. When he had rested and had formally offered
his evidence in the instant case, the Court resolved[6] to
admit all his exhibits over the objection of the prosecution, as the objections
refer more to the probative value of the exhibits, the relevancy and
admissibility of which would be considered during the rendition of the Courts
decision.
The
prosecution opted not to present rebuttal evidence.[7] Hence, the Court directed the prosecution and
the accused to file their simultaneous memoranda. Upon the filing thereof, the defense moved to
set the case for oral summation, which the Court granted per its Order dated
May 9, 2007. After hearing the summation
of the prosecution and the accused on June 15, 2007, the cases against accused
former President Joseph Ejercito Estrada were deemed submitted for decision.
To
establish its case against accused former President Joseph Ejercito Estrada for
Perjury, the prosecution presented Gerardo Dolorito Avendano, Renato Balatbat,
Salvador Rosal Serrano, Maria Pamela Fernandez Moran, Atty. William Tiu Chua,
Hernando Salayun Sac, Isma Castel Gonzales, and Annete Isabel Peralta Tamayo,
who testified as follows:
GERARDO DOLORITO AVENDANO.[8] He was a Clerk III in the Central Records
Division of the Office of the Ombudsman who was responsible for receiving
documents such as the Statement of Assets and Liabilities and Net Worth (SALN)
of government employees within the National Capital Region including those
coming from the Office of the President and Vice-President. The witness testified that on April 29, 1999,
he received the SAL[9] as
of December 31, 1998 of accused Former President Estrada and Luisa P. Ejercito,
signed and executed under oath. Based on
this document, the cash on hand and in bank of the said accused was
P5,035,363.40 and his net worth was P33,439,290.61. This document also contained a list of
business interests and financial transactions specifically mentioning the
names of the corporations wherein the persons submitting the SAL has holdings.
On cross examination, witness
Avendaρo stated that this was the only instance he was summoned to testify
regarding the SALN of a government employee.
RENATO ABAD BALATBAT.[10] The testimony of Renato Abad
Balatbat Was offered to prove, among other things, that the accused Former
President Joseph Ejercito Estrada maintained
Special Savings Account No. 6007-00057-9 in his name and benefit; that
the said account was opened on August 10, 1990 and remained active up to and
until August 8, 2000 when it was closed; that it was an active account in the
duration of almost ten (10) years; that the remaining balance as of December
31, 1998 was P44,268,442.68; and that this savings account was not disclosed in
the Statement of Assets and Liabilities for the year 1998 filed by accused
Former President Estrada.
Witness Renato Balatbat was the Bank Manager of
Keppel Bank San Juan Branch from January of 1995 to May 27, 2002. He is presently the Bank Manager of Keppel
Bank Caloocan Branch.
The
witness identified a signature card[11]
allegedly of accused Former President Estrada relating to account number SSB
No. 057-6 which was changed to PRO SA 57-9.
Witness Balatbat also related a ledger containing the regular
transactions of the said account on a day to day basis and a certification as
to the balance of the account. These
documents showed that the balance of the account as of December 31, 1998 was
P44,268,442.68. According to the
witness, the account was closed on August 8, 2000.
On
cross examination, witness Balatbat testified that the adverted account was
opened on August 10, 1990 which was prior to his employment in the bank and
that he had no knowledge or certainty on how the signature card was executed.
Witness
Salvador Rosal Serrano was the Vice-President of Security Bank Corporation and
the head of its Centralized Operation and Control Division. He was responsible for the day to day
operations of one hundred nineteen (119) branches of the Security Bank
Corporation; supervised the record keeping and accounting of the branch
transactions; ensured the compliance of their branches to bank policies and
procedures; supervised the safekeeping of all documents of all branch
transactions; and issued certified true copies of documents in relation to the
original documents kept by the bank.
The
witness received a subpoena from this Court to bring, and testify on documents
relating to the three (3) Investment Savings Accounts (ISA) issued in the name
of accused Joseph Ejercito Estrada by the Security Bank Corporation San Juan
Branch, Metro Manila. These pertained to
Account No. 0091-203796-550, Account No. 0091-203796-554, and Account No.
0091-203796-559.
As for Account No. 0091-203796-550, witness Serrano
related that this was formerly Account No. 09401083-00. The witness then related and identified the
ISA Agreement[13]
dated April 21, 1998; the ISA Agreement[14]
dated May 21, 1998; the ISA Agreement[15]
dated June 22, 1998; the Memorandum of Agreement[16]
dated September 23, 1998; the ISA Ledger[17]
for the period October 26, 1998 to November 25, 1998; the ISA Ledger[18]
for the period December 28, 1998 to November 29, 1999; the ISA Ledger[19]
for the period January 7, 2000 to December 11, 2000; and the Transaction
History Inquiry[20]
as of February 12, 2001.
Witness Serrano testified that the ISA Agreement
dated April 21, 1998 was issued in the name of accused Former President Joseph E.
Estrada. This ISA agreement was issued
for a total deposit or placement of
P10 Million and was signed by Baby Ortaliza in behalf of the said
accused. The witness related that the
banks clerk, Eunice Cuya, informed him that a certain Baby Ortaliza was the
representative of accused Estrada. The ISA Agreement dated May 21, 1998
allegedly shows a placement of P10,110,000.00 and a signature read as Baby
above the typewritten name of Joseph E. Estrada.
Witness Serrano identified further the signatures of
Anna Liza S. Angelo, the Service Head of Security Bank Corporation San Juan
Branch, and Elizabeth M. Ruiz, who was the Senior Manager of the said branch of
the bank. In the ISA Agreement dated
June 22, 1998, the placement increased to P10,221,000.00. Witness Serrano likewise identified the
signatures of Prosperidad A. Rondilla, who was the Service Head of the
aforementioned branch of the bank, and the signature of Antonio M. Maneja, the former head of the same branch of the
bank. In this particular document,
witness Serrano noted that there was no signature over the typewritten name of
Joseph E. Estrada. Subsequently, in the
Memorandum of Agreement dated September 23, 1998, he stated that the original
placement aggregated to P10,516,331.00.
As of December 31, 1998, the balance of Account No. 0091-203796-550 was
P10,817,052.52.
Witness Serrano explained that the original placement
of P10 Million earned interests and was rolled over after every maturity
date. The accrued interests were added
to the principal and the sum was the new placement for the account.
The witness also explained that the bank changed the
documentation form from investment savings account to memorandum of
agreement. This memorandum of agreement
documentation form was changed to investment savings account ledger sometime
in October of 1998. In the latest
documentation form, the bank issued a passbook to the depositor and that cash
withdrawal by an authorized representative with the confirmation of the
depositor was allowed unlike in the previous memorandum of agreement.
Regarding Account No. 0091-203796-554, witness
Serrano testified that this was opened in the name of accused Former President
Estrada initially for the purchase of Treasury Bills. The witness then itemized the following
documents relative thereto, as follows: Confirmation of Sale[21]
No. 81046 dated April 10, 1997 with the amount of P600,000.00; Confirmation of
Sale[22]
No. 82384 dated June 11, 1997 with the amount of P600,801.00; Confirmation of Sale[23]
No. 83099 dated July 23, 1997 with the amount of P612,028.00; Confirmation of
Sale[24]
No. 83952 dated September 3, 1997 with the amount of P618,864.00; Confirmation
of Sale[25]
No. 85007 dated October 29, 1997 with the amount of P629,981.00; Confirmation of
Sale[26]
No. 85571 dated December 18, 1997 with the amount of P640,130.70; Confirmation
of Sale[27]
No. 85761 dated January 21, 1998 with the amount of P646,764.00; and
Confirmation of Sale No. 86099[28]
dated March 4, 1998 with the amount of P655,638.00. These treasury bill placements were later
converted to Investment Savings Account Agreement[29]
dated April 29, 1998. The witness
further related and identified a Memorandum of Agreement[30]
dated October 2, 1998; an ISA Ledger[31]
dated November 3, 1998; an ISA Ledger[32]
for the period December 3, 1998 to November 11, 1999; an ISA Ledger[33]
dated December 13, 1999 to November 17, 2000; an ISA Ledger[34]
dated December 19, 2000 to January 18, 2001; and a Transaction History Inquiry
Report[35]
as of February 12, 2001. As of December
31, 1998, the balance of this account was Seven Hundred Twelve Thousand Four
Hundred Seventy Eight Pesos and Eighty Three Centavos (P712,478.83).
Anent Account No. 0091-203796-559, witness Serrano
related and identified the Confirmation of Sale[36]
No. 86295 dated March 20, 1998; the ISA Agreement[37]
dated June 8, 1998; the Memorandum of Agreement[38]
dated October 7, 1998; the ISA Ledger[39]
dated November 6, 1998; the ISA Ledger[40]
from December 9, 1998 to November 15, 1999; the ISA Ledger[41]
dated December 15, 1999 to November 17, 2000; the ISA Ledger[42]
dated December 19, 2000 to January 18, 2001; and the Transaction History Report[43]
as of February 12, 2001. As of December
31, 1998, the balance of this account was Seven Hundred Twelve Thousand Four
Hundred Seventy Eight Pesos and Eighteen Centavos (P712, 478.18).
Witness Serrano further testified that there was one
signature card[44]
for all of the adverted accounts. This
signature card pertained to accused former President Joseph Ejercito
Estrada. The witness also explained that
the real nature of the three (3) adverted accounts was good as cash. The investment savings accounts of the
accused were cash in bank wherein the balance of the account can be withdrawn
at anytime.
When
recalled for continuation of his direct examination on May 15, 2002, witness
Serrano testified that sometime in February 2001, he instructed Perpetua
Ognial, who was then the Officer-in-Charge of Security Bank Corporation San
Juan Branch, to report all the transactions relating to the adverted accounts
of accused former President Estrada as he received a subpoena from the Office
of the Ombudsman concerning the matter.
He likewise related that Baby Ortaliza also requested for an updating
of the said accounts. The last
updating of the aforementioned accounts of the accused was on November of
2001. Witness Serrano explained that
updating means the recording of the transactions or rollovers in the
passbook of the depositor. He added that
in February 2002, Baby Ortaliza requested again Perpetua Ognial for a
Certification of Balance of the accounts of the accused Former President
Estrada which request was, however, not issued because there was no
authorization given by the owner of the accounts.
On
cross examination, witness Serrano clarified that the three (3) adverted
accounts were deposit accounts and not investments. He further testified that accused former
President Estrada had a signature card for his three (3) investment savings
accounts. This signature card was
initially intended and opened for the purchase of Treasury Bills which was in
the nature of an investment but which was later converted to a savings
account. The witness also related that
Account No. 0091-203796-554 was originally Account No. 0940-1087-00. The change in the account number was brought
by the change in the system of the bank.
Witness
Serrano admitted that he was not the officer who was responsible for the
opening of accounts subject of the instant case. For the investment savings accounts (ISAs),
he testified that the San Juan Branch only had one (1) signature card that was
submitted last March 20, 1998. He stated
that he did not know when the accounts were opened and neither did he know who
took the signature specimen card.
On
re-direct examination, witness Serrano clarified that an Investment Savings
Account is not an investment but a deposit type of savings account and while
the accused had three (3) ISAs, it was an acceptable practice with Security
bank to maintain only one (1) signature card per depositor per branch.
On
re-cross examination, witness Serrano testified that when accused Estradas
accounts were converted into Investment Savings Accounts, they had no written
authority from the investor and he had no personal knowledge as to how the
accounts were converted into ISAs.
MARIA PAMELA FERNANDEZ MORAN.[45] The prosecution offered her testimony to prove, among other things, that
as a New Accounts holder of Security Bank [Corporation] San Juan Branch, she dealt with a certain Baby Ortaliza five
(5) or six (6) times, and that it was Baby Ortaliza who would bring to the
bank the passbook of accused Former President Joseph Ejercito Estrada
pertaining to the accounts subject of the instant charge.
Witness
Maria Pamela Fernandez Moran was the Branch Sales Officer of Security Bank
Corporation San Juan Branch who took charge of the New Accounts section. Her functions included generating sales
volume, acquiring new accounts, and reviewing and approving accounts opened.
The
witness testified that she was familiar with the account of accused former
President Estrada since she was in-charge of the records of the said
account. She related that the said
accused had three (3) Investment Savings Accounts (ISA) in their bank. The witness also identified an ISA Ledger[46]
for the period January 7, 2000 to December 11, 2000 which showed that she
updated the accounts of the accused on April 7, 2000 to May 9, 2000 as well as
for the months of June, July and September, all in year 2000. These transactions were allegedly rollover
of placements.
Witness Moran testified that the person who
transacted for the account of the accused was Baby Ortaliza, whose identity she
established through a photograph. The
witness mentioned that she met Baby for about five (5) or six (6) times and
that the last time she met her was in the afternoon of November 13, 2001 at the
Herrera Branch when Baby Ortaliza asked the witness to update the passbook of
accused Former President Estrada.
Witness Moran complied and returned the passbook of accused former
President Estrada to Baby Ortaliza.
The defense dispensed with the cross-examination of
said witness.
ATTY.
WILLIAM TIU CHUA.[47] The
prosecution offered the testimony of Atty. William Tiu Chua to prove, inter
alia, that accused Former President
Joseph Ejercito Estrada had an account with the Asia United Bank; that, as of
December 31, 1998, the balance of the account was P548,121.84; and that the
Statement of Assets and Liabilities of the accused as of December 31, 1998 did
not show the true amount that the said accused had in the bank.
Witness Atty. William Tiu Chua was
the Corporate Secretary of Asia United Bank since September of 1997. As Corporate Secretary, he was authorized to
certify as to the authenticity of documents pertaining to the Asia United
Bank. He also held the said position
while concurrently the managing partner of Azcuna Yorac Arroyo and Chua Law
Firm.
The
witness testified that sometime in the year 2001, the bank received summons
from the Office of the Ombudsman. His
law firm represented the bank and that, in such capacity, replied to the
summons through a Letter[48]
dated February 12, 2001 signed by Atty. Caydo as senior associate of the law
firm. The letter mentioned that accused
Former President Joseph Ejercito Estrada and Guia Gomez had accounts in their
names with Asia United Bank. The said
accused had Account No. 001-01-000588-8.
The letter further stated that the said bank does not have any account
under the names of Jose Velarde, Laarni Enriquez, Joy Melendrez, Peachy Osorio,
Rowena Lopez, Kevin or Kelvin Garcia, 727, 737, 747, 757, 777, and 858.
Witness Chua then identified a Statement of Account[49]
of Joseph Ejercito Estrada with Account No. 001-01-000588-8 and a Certification
of Asia United Bank[50]
as to the balance of the said account.
Both documents showed that, as of December 31, 1998, the adverted
account of accused Former President Estrada had a balance of P548,121.84.
Witness
Chua also presented and identified a Signature Card[51]
for the Account of Joseph Ejercito Estrada with three (3) specimen signatures
appearing thereon and a Customer Information Form[52]
of Asia United Bank indicating likewise the name of accused Former President
Estrada.
On
cross-examination, the witness clarified that he was physically present at the
time the adverted signature card of the accused was executed. He was likewise physically present at the
time the adverted letter of the law firm was prepared. The witness, however, had no participation in
the preparation of the aforesaid documents.
He further clarified that the adverted Statement of Account of Joseph
Ejercito Estrada was computer generated and that he was not the one who
actually prepared the same.
Witness Chua further testified that, based on
the Statement of Account of accused Former President Estrada, the last deposit
transaction was on October 15, 1998 for P205.00. Based also on the said document, the witness
testified that the bank was deducting service charges against the adverted
account from March 31, 2000 because it had become dormant since the last
deposit transaction. Witness Chua opined
that it was a possibility that the account holder might have forgotten of the
existence of the account.
On additional direct examination, the witness claimed
that he had authority to represent Asia United Bank as shown in a Secretarys Certificate[53]
dated November 11, 2002 signed by the said witness, in his capacity as the
Corporate Secretary, and by a Notary Public, Atty. Lailene Barcenas. The authority to represent given to the
witness was confined to testify for and in behalf of the said corporation in
matters relating to [bank] accounts involved in the cases filed against
accused Former President Estrada.
The witness added that the abbreviation SCI as
reflected in the Statement of Account of the accused was the banks code for
service charges in its computer system which were deducted from dormant
accounts for every month.
On additional cross examination, witness Chua
testified that the Secretarys
Certificate earlier exhibited was issued after a special meeting of the
Board of Directors of the corporation on October 19, 2001. He clarified that he prepared the minutes of
the said special meeting and the certificate.
The witness further stated that the bank account of
accused Former President Estrada with Account No. 001-01-000588-8 was subjected
to service charges because it had been dormant since March 31, 2000. He explained that a current account becomes
dormant when no transactions are entered for a period of one (1) year, while a
savings account becomes dormant when no transactions are entered for a period
of two (2) years.
HERNANDO
SALAYUN SAC.[54] The
testimony of Hernando Salayun Sac was offered to prove principally that accused
Former President Joseph Ejercito Estrada, his spouse and relatives had
holdings in corporations other than those mentioned in the Statement of
Assets and Liabilities of the said accused as of December 31, 1998.
Witness
Hernando Salayun Sac was a Records Officer of the State and Research Unit under
the Company Registration and Monitoring Department of the Securities and
Exchange Commission (SEC). Among his
functions were to prepare and certify the authenticity of documents in their
records.
In
compliance with the subpoena he received from the Court, the witness presented
and identified the certified true copies of the Certificates of Registration,
Articles of Incorporation and the By-Laws of the following corporations:
1)
First LPL Land
Syndication, Inc.[55];
2)
Asis-Ejercito
Garments, Inc.[56];
3)
24-K
International Food, Inc.[57];
4)
Alpha Funds,
Inc.[58];
5)
Prime
Entertainment for Television Production, Inc.[59];
6)
ADE Food, Inc.[60];
7)
Electronic
Sentry Systems, Inc.[61];
8)
All Hot Soup,
Inc.[62];
and
9)
FELT Food
Services[63],
Inc.
Witness Sac affirmed that: (1) the Articles of
Incorporation of First LPL Land Syndication, Inc. contained the amount
subscribed and paid by Luisa P. Ejercito and a signature above the typewritten
name of the aforementioned; (2) the Articles of Incorporation of Asis-Ejercito
Garments, Inc. contained the amount subscribed and paid by Jacqueline P.
Ejercito and Luisa P. Ejercito, and the signatures over the typewritten names
of the aforementioned; (3) the Articles
of Incorporation of 24-K International Food, Inc. contained the amount
subscribed and paid by Luisa P. Ejercito and a signature above the typewritten
name of the aforementioned; (4) the
Articles of Incorporation of Alpha Funds, Inc. contained the amount subscribed
and paid by Joseph Ejercito Estrada and a signature over the typewritten name
of the aforementioned; (5) the Articles
of Incorporation of Prime Entertainment for Television Productions, Inc.
contained the amount subscribed and paid by Jinggoy Estrada, Luisa P. Ejercito
and Jacqueline P. Ejercito, and the signatures over the typewritten names of
the aforementioned; (6) the Articles of
Incorporation of ADE Food, Inc. contained the amount subscribed and paid by
Joseph Ejercito Estrada and Luisa P. Ejercito, and the signatures over the
typewritten names of the aforementioned; (7)
the Articles of Incorporation of Electronic Sentry Systems, Inc.
contained the amount subscribed and paid by Joseph Ejercito Estrada and a
signature over the typewritten name of the aforementioned; (8) the Articles of Incorporation of All Hot
Soup, Inc. contained the amount subscribed and paid by Joseph Ejercito Estrada
and Luisa P. Ejercito, and the signatures over the typewritten names of the
aforementioned; and (9) the Articles of
Incorporation of FELT Food Services, Inc. contained the amount subscribed and
paid by Joseph Ejercito Estrada and a signature over the typewritten name of
the aforementioned.
The witness testified that the name of accused Joseph
Ejercito Estrada did not appear in the Articles of Incorporation of
Asis-Ejercito Garments, Inc., 24-K International Food, Inc., and Prime
Entertainment for Television Production, Inc.
On cross examination, witness Sac clarified that he had no participation
in the execution of the foregoing documents and that he was not the one who
photocopied the same.
ISMA CASTEL
GONZALES.[64] The testimony of witness
Isma Castel Gonzales was offered to prove, among other things, that she
authenticated the dorsal portions of the last pages of the Certificate of
Registration, Articles of Incorporation and By-Laws of the nine (9)
corporations mentioned in the Information of Criminal Case No. 26905 on May 11,
2001.
Witness Isma Castel Gonzales was the Supervisor of
the Public Reference Unit under the Human Resources and Administrative
Department of the Securities and Exchange Commission (SEC) during the time
material to this case. She supervised
the overall operation of the Public Reference Unit, issued authenticated
documents and signed the same after verification by the employee in charge.
The witness was subpoenaed to appear before this
Court to testify on certain documents related to this case. The documents pertained to nine (9)
corporations, namely,
1)
First LPL Land
Syndication, Inc.;
2)
Asis-Ejercito
Garments, Inc.;
3)
24-K International
Food, Inc.;
4)
Alpha Funds,
Incorporated;
5)
Prime
Entertainment for Television Production, Inc.;
6)
ADE Food,
Incorporated;
7)
Electronic
Sentry Systems, Inc.;
8)
All Hot Soup,
Inc.; and
9)
FELT Food
Services, Inc.
Witness Gonzales confirmed the authenticity of a set
of three (3) documents for each of the abovementioned corporations[65]. She attested to the genuineness of the
Certificates of Registration, the Articles of Incorporation and the By-Laws of
these corporations by identifying her signatures thereon as well as the
signatures of the records custodian of the SEC, Mr. Hernando S. Sac, with whom
she had worked with for eight (8) years at the same office.
On cross-examination, the witness related that, based
on the documents she earlier exhibited and identified, the same were presented
for filing and were approved before June of 1998. She likewise testified that the name of
Joseph Ejercito Estrada did not appear in the set of documents pertaining to
First LPL Land Syndication, Inc., Asis-Ejercito Garments, Inc., 24-K
International Food, Inc., and Prime Entertainment for Television Production,
Inc. Witness Gonzales further related
the amount of investments made by accused Former President Estrada and his wife
as appearing in the documents she brought.
ANNETTE ISABEL
PERALTA TAMAYO.[66] The
prosecution offered the testimony of Annette Isabel P. Tamayo to prove that
the nine (9) corporations mentioned in the information in the instant charge
were still existing as of December 31, 1998.
Witness Annette Isabel Tamayo was the
Officer-in-Charge of the Corporate Filing and Records Division under the
Corporate Registration and Monitoring Department of the Securities and Exchange
Commission (SEC). Aside from supervising
the Corporate Filing and Records Division, the witness was also responsible for
the issuance of certifications of corporate filing and information on
registered corporations as well as the non-registration of several entities.
In compliance with the subpoena sent to her by this
Court, witness Tamayo brought the Certificates of Status of certain
corporations. The witness exhibited and
identified the Certificates of Corporate
Filing / Information[67]
all dated November 26, 2002 for the following corporations:
1)
First LPL Land
Syndication, Inc.;
2)
Asis-Ejercito
Garments, Inc.;
3)
24-K
International Food, Inc.;
4)
Alpha Funds,
Inc.;
5)
Prime
Entertainment for Television Production, Inc.;
6)
ADE Food, Inc.;
7)
Electronic
Sentry Systems, Inc.;
8)
All Hot Soup,
Inc.; and
9)
FELT Food
Services, Inc.
Witness Tamayo testified that the aforementioned
certificates state the date of registration, period of existence and the fact
that the foregoing corporations still existed as of December 31, 1998.
On
cross-examination, witness Tamayo testified that ADE Food, Inc. has not filed
its general information sheet and financial statement from 1988 to 2001 so that
the SEC had already issued a show order to the said corporation under threat of
revocation of its registration. Witness
Tamayo added that the same holds true for F.E.L.T. Food Services, Inc. which
did not submit its financial statements and general information sheet from 1981
to 2000. She testified that she based
her findings only on the monitoring sheet submitted by the Law and Regulations
Division of SEC. She admitted, however, being incompetent to testify on the
shareholdings of the accused former President in the said corporations and on
whether the said corporations actually received the show cause order of
SEC.
As
to Electronics Sentry Systems, Inc., witness Tamayo testified that the said
corporation did not also file its general information sheet from 1984 to
2001. Neither did it file its financial
statements from 1984 to 2000. As to All
Hot Soup, Inc., witness Tamayo testified that its registration had been revoked
effective November 11, 2002 although she was not sure if the accused was ever
notified of the same because it was another office in the SEC that took charge
of the same. As for Primetime
Entertainment and Alpha Funds, Inc., she testified that she had also issued a
certification to the effect that said corporations had no general information
sheet filed from 1986 to 2000 and 1988 to 2000, respectively and neither did
the same have stock and transfer books.
Witness Tamayo added that as a matter of procedure,
revocation of a corporations registration takes effect ninety (90) days after
issuance of the show cause orders. In
the case of the aforesaid corporations, she stated that despite the show cause
orders, there was nothing in her records that showed their compliance therewith.
During
the continuation of her cross examination, witness Tamayo attested that she
neither knew the amount of paid subscription of the stockholders of the subject
corporations nor the assets of the corporations as of December 31, 1998. She related that First LPL Land Syndication,
Inc. filed its Financial Statement for the year 1998. The witness testified, however, that
Asis-Ejercito Garments, Inc. did not file its General Information Sheets for
the years 1991 to 2002; that 24-K International Food, Inc. did not file its
General Information Sheets for the years 1981 to 2001; that Alpha Funds, Inc.
did not file its General Information Sheets for the years 1988 to 1999; that
Prime Entertainment for Television, Inc. did not file its General Information
Sheets for the years 1986 to 2000; that ADE Food, inc. did not file its General
Information Sheets for the years 1986 to 2001; that Electronics Sentry Systems,
Inc. did not file its Financial Statements for the years 1984 to 2000; that All
Hot Soup, Inc. did not file its Financial Statements for the years 1986 and
1989 to 1999; and that FELT Food Services, Inc. did not file its Financial
Statements for the years 1981 to 2000.
Witness Tamayo likewise identified the series of Show
Cause Orders of the SEC to the corporations concerned but she could not
ascertain whether the said documents were actually sent and received by the
said corporations.
On
re-direct examination, witness Tamayo testified that the subject corporations
were still registered with the SEC and the respective registrations thereof had
not been revoked as of December 31, 1998.
In defense, accused former President
Joseph Ejercito Estrada testified on his behalf in the instant charge for
Perjury and also presented Lorna Dumlao.
Their testimonies are summed up as follows:
Former President Joseph Ejercito Estrada. During direct examination, accused former
President Joseph Ejercito Estrada categorically stated that he did not
willfully violate the law and that since he became a public official starting
with his position as a mayor, he religiously filed his Statement of Assets and
Liabilities. Accused thus denied all the charges against him.[68]
The accused clarified that he did not personally
prepare his Statements of Assets and Liabilities as he just asked his staff to
do it for him, but he clarified that he always told them to comply with the
requirements of the law. Specifically as
to his Statement of Assets, Liabilities and Networth (SALN) for the year ending
December 31, 1998 (also referred to as the 1998 SALN), the accused identified
the late Atty. Antonio Dollete, a certain Mr. Guerrero and a certain Mr. Martin
as among his staff who prepared said 1998 SALN .[69]
In describing the status of the companies mentioned
in the instant Information, the accused sought the aid of memoranda consisting
of certain notes/matrix previously prepared by his staff. The prosecution
objected to the use of the prepared matrix[70]
but the Court allowed the accuseds use of the same. Hence, the accused
continued his testimony using the said matrix to specifically describe how he
was familiar with the corporations that he allegedly failed to include in his
1998 SALN.
As to First LPL
Land Syndication, Inc., accused Estrada stated that said corporation was
included in his Statement of Assets and Liabilities under the heading
Investments.[71]
With regards to Asis
Ejercito Garments, the accused acknowledged that the shareholder therein
was his wife, Senator Loi, who was in turn, a nominee of their daughter
Jackelyn, whose total number of shares was only ten (10) shares worth One
Thousand Pesos (P1,000.00). He pointed out that the shares were bought in 1990
and that Asis Ejercito Garments had been a dormant corporation even before he
became a senator.[72]
As to 24K
International Food, Inc., the accused former President recounted that the
said corporation operated a restaurant when he was a mayor; that his wife had
one thousand shares therein worth One Hundred Thousand Pesos (P100,000.00) and
that the restaurant was closed even before he became a Senator.[73]
As for the corporations in which his wife had
shareholdings, the accused allegedly did not include the said corporations in
his 1998 SALN because most of the time (his wife) is just a nominee.[74]
According to the accused, his wife was a shareholder
of Prime Entertainment for Television
Production, Inc., being the nominee of their son Jinggoy, who had twenty
(20) shares with a par value of Two Thousand Pesos. He allegedly did not include
the said corporation in his 1998 SALN because it was already closed when he was
still a Senator.[75]
As to Alpha
Funds, Inc., the accused former President recalled that it was a stock
trading corporation in which he had one million (1,000,000) shares with a total
par value of One Million Pesos (P1,000,000.00). But Alpha Funds, Inc.,
allegedly never operated since the accuseds co-incorporator, William Chu died
way back when the accused was still a senator.[76]
As for ADA
Food, Inc., the accused said that it was a restaurant which operated when
he was still a mayor; that his wife, Senator Loi, had a total of eight hundred
fifty (850) shares therein with a value of eighty-five thousand pesos
(P85,000.00); and that the restaurant lost money and closed down even before he
became senator. Thus, the accused allegedly did not disclose ADA Food, Inc., in
his 1998 SALN anymore.[77]
Concerning Electronic
Sentry Systems, Inc., the accused recalled that it was a joint securities
in which Mr. Angelo Castro, Jr. along with his wife June Keithley, who were
broadcaster friends of his, allegedly invited him to be one of the shareholders
back in 1983. The venture allegedly held seminars but never operated, such that
the accused no longer reported the same in his 1998 SALN.[78]
All Hot
Soup, Inc., according to the
accused, was a corporation put up by him and his wife in 1983, along with Mr.
and Mrs. Avecilla in order to operate the Sabawan Restaurant in Greenhills,
Similarly, for F.E.L.T.
Food Services, the accused and his wife, along with the Spouses Avecillas,
established the corporation in 1978 in order to operate a restaurant called
Sinugba. The accused said that he did not report the corporation in his 1998
SALN because the restaurant lost money and was eventually closed even before he
became a senator.[80]
As for the alleged accounts in Asia United Bank, the accused said that the amounts therein are
included in his 1998 SALN under the heading cash on hand and in bank.[81]
Concerning the Security
Bank accounts, the accused declared that these were part of the campaign
contributions to his political party, the Partido ng Masang Pilipino, when he
ran for president. He stated that he was a mere trustee of the funds in the
said bank accounts so he could not include them in his 1998 SALN as they
actually belonged to his political party. [82]
As to the Keppel
Bank accounts, the accused claims that the funds therein where political
contributions to his party when Senator Loi (Ejercito) ran for the Senate in
2001 and that he was just a trustee for the said account.[83]
Finally, the accused denied having appeared before a
notary public and thus claims that he did not execute his 1998 SALN under oath.
The accuseds testimony
during direct examination, specifically with regards to the corporations, is
summarized in the accused Memorandum as follows:
FIRST LPL
LAND SYNDICATION, INC. included under the heading investments[84];
ASIS-EJERCITO
GARMENTS, INC. Senator Luisa Estrada was just a nominee of Jackie, their daughter; she only
had ten (10) shares worth P1,000. It was dormant even before he became Senator[85];
24K
INTERNATIONAL FOOD, INC. it operated a restaurant (Lady in Red Restaurant)
when he was still mayor; it was Senator Luisa Estrada who was a shareholder. It
was closed even before he became a Senator[86];
PRIME
ENTERTAINMENT FOR TELEVISION PRODUCTION, INC. Senator Luisa was only a
nominee of Senator Jinggoy Estrada; she only had 20 shares worth P2,000. This
was closed when he was still a Senator[87];
ALPHA
FUNDS, INC. The company never operated; Mr. William Tiu died when he was
still a Senator;[88]
ADE FOOD,
INC. it operated the El Alkalde Restaurant; it lost money and was closed even
before he became a Senator[89];
ELECTRONIC
SENTRY SYSTEMS, INC. Angelo Castro, Jr., and June Keithley
invited him to
become a shareholder but the company never operated although they held seminars
in Greenhills[90];
ALL HOT
SOUP, INC. it operated the Sabawan Restaurant was back in 1983 when he was
still mayor; it lost money and was closed when he was still a mayor[91];
(and)
FELT FOOD
SERVICES it operated the Sinugba Restaurant way back in 1978; it was closed
when he was still mayor; the Estradas no longer wanted to be partners with the
Avecillas because they always lose money[92].
On
cross-examination, accused former President Estrada was confronted with the
question as to how many times he had accomplished and filed his SALN[93]
in connection with his statement during direct examination that he always
religiously filed (his) Statement of
Assets and Liabilities,[94]
The accused confirmed that every year he asks his staff to file his statements
and to comply with the requirements of the law.[95]
The
accused verified his signature appearing on the 1998 SALN, marked as
prosecutions Exhibit A.[96] Accused also confirmed the following typewritten
entry on Part B. Business Interest and
Financial Connections on page 2 of his 1998 SALN: (1) the words, WIFE AND CHILDREN in the column Name; (2) on the next column after
that, the name of three (3) companies; and (3) on the fourth column, the word INCORPORATOR[97].
The accused confirmed that JELP Real Estate
Development Corporation, JE, Inc., and Fe Luisa Development Corporation are the
only three companies in operation as of December 31, 1998.[98] The accused also confirmed that the name of
his wife is Senator Luisa Pimentel; that he affixed his signature below the
certification portion of the 1998 SALN; that his investment in Asia United Bank
as of December 31, 1998 was Five Hundred Thousand Pesos (P500,000.00)[99];
and that as far as he could remember the amount of more or less Twelve Million
Pesos was in the Security Bank account as of December 31, 1998.[100]
The accused former President Joseph Ejercito Estrada
clarified that he did not include the amounts in Security Bank and Keppel Bank
in his 1998 SALN because being campaign contributions, they were held in trust
for accuseds political party. Accused Estrada acknowledged that he had no
documents showing that the funds in Security Bank and Keppel Bank were held in
trust by him since campaign donors are not usually issued nor do they ask for
receipts.[101]
He added that the political contributions were not reported to the COMELEC as
it was not his duty as titular party head but that of the party treasurer.[102]
Accused Estrada, however, declared that party officers knew about said campaign
contributions.[103]
When asked about First LPL Land Syndication Inc., the
accused averred that as to the status of the corporation, he would have to ask
his wife, who is in charge of this corporation. He said that when his wife
earns money, she does not tell him about it and vice versa.[104]
LORNA DUMLAO.
Her testimony was offered, among other
things, to corroborate the testimony of former President Joseph Ejercito
Estrada that certain corporations, particularly All Hot Soup, Inc., ADE Food
Incorporated, and FELT Food Services Incorporated, have informed the Social
Security System (SSS) that they were no longer going to operate.
Witness Lorna Dumlao had been with the SSS since 1981
and was the section head of the Members Section at the time she testified. As
such, she evaluated and determined the coverage of employers and employees and
also acted on the requests of employers for suspension or termination or
dissolution of operations.
Lorna Dumlao testified that having been connected
with the SSS for a long period of time,
she has become familiar with the procedures it has adopted. The witness,
however, manifested that she was not competent to testify on the matter of the
collection of employers or employees contribution, but she agreed and confirmed
that there are certain instances when a corporation files a termination
notification once it intends to terminate the remittances of the employers or
employees contribution to the SSS. She enumerated these instances as
retirement, dissolution, merger, change of ownership, change of legal
personality, temporary suspension, cancellation of membership, and such other
reasons such as expiration or shortening of the corporate term.
Witness Dumlao brought along and formally identified
SSS records called employer static information concerning the status of
certain companies with the said agency.
On the employer static information on the corporation, All Hot Soup,
Inc., [105]
the witness confirmed that as of July 14, 2006, the account status of the said
corporation as per SSS records is temporary
suspension, reactivation or termination on 11-07-89. Witness Dumlao testified that said
corporation was covered by the SSS beginning October 1984,[106]
but its account status was on temporary suspension effective November 7, 1989[107]
based on a report[108]
of the Collections Department of the SSS that the building of its given address
had been demolished eight (8) years ago.
Witness also confirmed that the accounts status has been noted to be
FOR SEC VERIFICATION.[109]
The witness explained that said notation means that the report generated by the
SSS Contributions Collection Department as to the accounts status was slated
for SEC verification on the actual status of the corporation. The witness
added, however, that SEC verification was not the function of her section,
thus, she had no knowledge as to the SEC records on the said company. She said
that the task of SEC verification was already downloaded to the jurisdiction
of where the location of the company is.[110]
As for F.E.L.T. Food Services, Inc.,[111]
witness Dumlao testified that based on SSS records,[112]
the company was covered in November 1980 although on December 4, 1986, SSS
effected the temporary suspension of its account based on the termination
notice[113]
submitted by the corporation that it has been dissolved effective November 1,
1986.[114] The witness verified that as of July 14,
2006, the SSS records show that the corporations account status is temporary suspension as of 12-01-83
and that based on SSS records, F.E.L.T.
Food Services, Inc. was dissolved effective November 1, 1986[115]
although no deed of dissolution was submitted to the SSS.[116]
As for ADE Food Incorporated, witness Dumlao
testified that the company was covered by the system effective October 1985[117]
but it was put on temporary suspension effective April 15, 1988[118]
based on the report[119]
of the Collections Department of the SSS that no such company existed within
the supposed location. The witness also
confirmed that as of July 14, 2006, the account was considered under temporary
suspension, reactivation or termination on the date 04-15-1986.[120]
Witness Dumlao admitted that she had no personal
knowledge as to the status of ALL HOT SOUP, INC., FELT Food Services, Inc., and
ADE Food Services Inc., in the records of the Securities and Exchange
Commission. As per the records of the SSS, however, she testified that all
three corporations were no longer reactivated or were no longer SSS member
corporations.
Witness Dumlao also testified that with respect to
Alpha Funds, Inc.,[121]
the SSS records show that said corporation was on temporary suspension
effective April 1, 1992 and that there were no records that the said company
was reactivated. As to the account
status of First LPL Lands Syndication, Inc., the witness stated that SSS
records show that the said corporation was likewise temporarily suspended[122]
as of May 19, 1997 and that there were no records that the same was reactivated
since that date.
On
cross-examination, the witness confirmed that as per SSS records, the said two
(2) corporations were on temporary suspension status.
Accused Former President Joseph Ejercito Estrada is charged with the
crime of Perjury defined in and penalized by Article 183 of the Revised Penal
Code as follows:
Art.
183. False testimony in other
cases and perjury in solemn affirmation. The penalty of arresto
mayor in its maximum period to prision correccional in its minimum
period shall be imposed upon any person who, knowingly making untruthful
statements and not being included in the provisions of the next preceding
articles, shall testify under oath, or make an affidavit, upon any material
matter before a competent person authorized to administer an oath in cases in
which the law so requires.
Any person
who, in case of a solemn affirmation made in lieu of an oath, shall commit any
of the falsehoods mentioned in this and the three preceding articles of this
section, shall suffer the respective penalties provided therein.
In the instant case, the prosecution is required to
establish by the necessary quantum of proof, the elements of perjury, and
unless the State succeeds in proving the accuseds guilt beyond reasonable
doubt, the accused is entitled to the presumption of innocence in his favor,
because the conscience (of the Court) must be satisfied that on the accused
could be laid the responsibility of the offense charged[123].
The prosecution claims that it has undisputedly
proven all the elements of the crime. This was allegedly what the Court found
when it earlier denied the accused former Presidents demurrer to evidence --
that there exists a prima facie case
against the accused for perjury. The prosecution adds that the defense has
failed to present countervailing evidence to rebut the prima facie case against the accused. Accordingly, where the
prosecution has established a prima facie
case against the accused, the burden is shifted upon the accused to prove
otherwise.
After considering the defenses presentation of its
evidence however, it appears that the prima
facie case built by the prosecution, specifically with regard to the
existence of the third element of the crime of perjury charged herein, has been
sufficiently challenged or rebutted by the accused. Hence, if the inculpatory
facts and circumstances are capable of two or more explanations, one of which
is consistent with the innocence of the accused and the other consistent with
his guilt, then the evidence does not fulfill the test of moral certainty and
is not sufficient to support a conviction.[124]
The Courts finding may be better explained by
considering the elements of perjury in
seriatim as discussed by the prosecution and the accused.
The elements of perjury[125]
are:
(1)
That the accused
made a statement under oath or executed an affidavit upon a material matter;
(2)
That the
statement or affidavit was made before a competent officer, authorized to
receive and administer oath;
(3)
That in that
statement or affidavit, the accused made a willful and deliberate assertion of
a falsehood; and
(4)
That the sworn
statement or affidavit containing the falsity is required by law or made for a
legal purpose.
FIRST ELEMENT: That the accused made a statement under oath or executed an affidavit upon a material matter
There appears to be no dispute as to the first
element since the accused former President has admitted to having filed his
Statement of Assets, Liabilities and Net Worth (or SALN, for brevity) as of
December 31, 1998, thus admitting to making a statement under oath on material
matters which are required to be disclosed by all public officials by virtue of
Republic Act No. 6713. Thus, accused
testified as follows:
Atty.
Flaminiano:
Q. As President of the Republic of the
A. As I have said, I always file my
Statement of Assets and Liabilities every year religiously.[126]
xxx xxx xxx.
SECOND
ELEMENT: That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath
The defense questions the alleged failure of the
prosecution to prove the second element but such issue was previously raised in
the accused Demurrer to Evidence and had been resolved by this Court in its
Resolution dated July 12, 2004, which ruling is being maintained in this
decision. The said ruling is herein quoted as follows:
SECOND ELEMENT
Of the two rival positions of the parties
herein, the more tenable is the one espoused by the prosecution, at least for
purposes of herein demurrer to evidence. The 1998 SAL is a public and official
document (cf. Gapusan-Chua vs. Court of
Appeals, 183 SCRA 160 [1990]) submitted by movant in the performance of his
duty as the then President of the Republic (Sec.
8, R.A. No. 6713 of the Code of Conduct and Ethical Standards for Public
Officials and Employees). As such, it is prima facie evidence of the facts stated therein (Sec. 23, Rule 132 Revised Rules of Court)
including the authority of the person who administered the oath.
By the very nature of a prima facie evidence, the same can be
conquered by contrary and competent evidence (Salonga vs. Cruz-Pano, 134 SCRA 438).
Accused former President Estrada denies having any
oath administered to him in connection with the subject 1998 SALN. The defense
insists that it is the States burden to prove that the notary public concerned
had a commission at the relevant time, before whom accused appeared, but which
the prosecution allegedly failed to do.
The Court agrees with the prosecutions argument that
being a notarized document, the subject SALN has in its favor the presumption
of regularity, which may only be rebutted by evidence so clear, strong and
convincing as to exclude all controversy as to the falsity of the certificate.
The accused former Presidents statement that he never appeared before a notary
public to execute an oath cannot overcome the presumed validity and due
execution of the notarized document for a notarial document is, by law,
entitled to full faith and credit upon its face. Courts, administrative
agencies and the public at large must be able to rely upon the acknowledgment
executed by a notary public and appended to a private instrument.[127]
Instead of bare denials, accused former President Joseph Ejercito Estrada
should have presented clear and convincing proof to rebut the presumption of
regularity in the notarization of the subject SALN.
Moreover, Section 2, Rule 131 of the Revised Rules of
Evidence creates a conclusive presumption that one who, by his own
declaration, act or omission, intentionally and deliberately led another to
believe a particular thing is true, and to act upon such belief, he cannot, in
any litigation arising out of such declaration, act or omission, be permitted
to falsify it. When the accused former
President submitted his SALN, he knew
that it had to be executed under oath as required by law and by his act of
submitting the subject 1998 SALN, he led the authorities to believe that the jurat contained therein is true; that
the said SALN was subscribed and sworn to before Notary Public RODUALDO C.
DELOS SANTOS on April 29, 1999 and thus executed under oath. Such presumption now governs the case at bar
and remains conclusive upon the accused.
THIRD
ELEMENT: That in that statement or affidavit, the accused made a willful and
deliberate assertion of a falsehood
The
prosecution asserts that it has clearly shown by voluminous documentary
evidence and numerous witnesses that the accused willfully and deliberately
committed falsehood in his 1998 SALN. Allegedly, the accused lied in the
following entries in his SALN as of December 31, 1998:
1.
The accused, his
wife and unmarried childrens business
interests in and financial connections in only three (3) corporations;
2.
Total amount of cash that he and his wife had on hand and in banks as of
December 31, 1998 was only P5,035,363.44;
3.
He and his
wifes total net worth as of
December 31, 1998 was only P33,439,290.61.[128]
The prosecution contends that it was able to show
that as of December 31, 1998, contrary
to what was declared in accused former President Joseph Ejercito Estradas 1998
SALN, the latter had cash in three banks - Keppel Bank (San Juan Branch), Security
Bank (San Juan Branch) and Asia United Bank in the total amount of FIFTY SEVEN
MILLION ONE HUNDRED SIX THOUSAND TWO HUNDRED AND ONE AND 40/100 PESOS
(P57,106,201.40) and that the accused, his wife and unmarried children had additional business interests and
financial connections in the following existing corporations:
1.
First LPL Land
Syndication, Inc.;
2.
Asis-Ejercito
Garments, Inc.;
3.
24K
International Food, Inc.;
4.
Alpha Funds,
Inc.;
5.
Primetime
Entertainment for Television (PENTEL Productions, Inc.);
6.
ADE Food, Inc.;
7.
Electronic
Security Systems, Inc.;
8.
All Hot Soup,
Inc.;
9.
F.E.L.T. Food
Services, Inc[129].
The
prosecution also asserts that all the above evidence were not controverted nor
denied by the accused.
Surprisingly, the prosecution
merely dismissed the accused defenses as either irrelevant, immaterial or
being non-sequitur[130]
without refuting the same. Despite
the explanation of accused former President
Joseph Ejercito Estrada on his
failure to indicate in his SALN the money held in trust for his political party
and his corporate holdings or connections, the prosecution made no effort to
rebut his testimony. Hence, as it
stands, the prosecutions evidence, which merely pointed out the purported
omissions in the accuseds 1998 SALN, failed to convince the Court of the
crucial consideration in the third element of perjury, that the accused deliberately and willfully committed a falsehood in his 1998 SALN, especially after
hearing the evidence of the accused former President.
In order to be liable for
perjury, the falsehood committed by the accused in his sworn statement must be deliberate and willful. According to Blacks Law Dictionary, the use of the word (deliberate) in describing a crime, the idea is
conveyed that the perpetrator weighs the motives for the act and its
consequences, the nature of the crime, or other things connected with his
intentions, with a view to a decision thereon; that he carefully considered all
these and that the act is not suddenly committed.[131]
The Court is not convinced
that the accused omission in his SALN of the subject moneys in the bank and
business and financial interests in the said corporations was deliberate and
intentional. The accused former Presidents testimony as corroborated by
documentary evidence from the Securities and Exchange Commission on the
inactive status of the corporations and the certifications from the Social
Security System on the temporary suspension of the corporations for not filing
contributions for several years, if considered in their totality, negate the
element of willful and deliberate assertion of a falsehood.
In fact, from the accused
former Presidents testimony, three things are readily apparent: (1) the
accused believed that he did not have to disclose the money in the banks (as
these were not his own) and the other corporations, which to him no longer
existed because the businesses for which the said corporations had been
established either failed to operate or had long been closed or became
non-operational; (2) the accused did not personally prepare the entries in his
1998 SALN; and (3) the accused is not knowledgeable about the business and
financial interests of his immediate family. These circumstances do not amount
to a calculated, premeditated and deliberate intention to conceal the money in
the banks or the financial interests in the corporations.
As to the accuseds main
defenses, his testimony during direct examination as summarized in his
Memorandum is as follows:
FIRST LPL
LAND SYNDICATION, INC. included under the heading investments[132];
ASIS-EJERCITO
GARMENTS, INC. Senator Luisa Estrada was just a nominee of Jackie, their daughter; she only
had ten (10) shares worth P1,000. It was dormant even before he became Senator[133];
24K
INTERNATIONAL FOOD, INC. it operated a restaurant (Lady in Red Restaurant)
when he was still mayor; it was Senator Luisa Estrada who was a shareholder. It
was closed even before he became a Senator[134];
PRIME
ENTERTAINMENT FOR TELEVISION PRODUCTION, INC. Senator Luisa was only a
nominee of Senator Jinggoy Estrada; she only had 20 shares worth P2,000. This
was closed when he was still a Senator[135];
ALPHA
FUNDS, INC. The company never operated; Mr. William Tiu died when he was
still a Senator[136];
ADE FOOD,
INC. it operated the El Alkalde Restaurant; it lost money and was closed even
before he became a Senator[137];
ELECTRONIC
SENTRY SYSTEMS, INC. Angelo Castro, Jr., and June Keithley
invited him to
become a shareholder but the company never operated although they held seminars
in Greenhills[138];
ALL HOT
SOUP, INC. it operated the Sabawan Restaurant was back in 1983 when he was
still mayor; it lost money and was closed when he was still a mayor[139];
(and)
FELT FOOD
SERVICES it operated the Sinugba Restaurant way back in 1978; it was closed
when he was still mayor; the Estradas no longer wanted to be partners with the
Avecillas because they always lose money.[140]
As for the corporations
mentioned in the Information, the accused claims that he failed to mention them in his SALN because
they were either defunct in 1998, comprised de minimis investments of P1,000 or so, or were certainly embraced
in the generic word investments on page 1 of the SALN.[141]
The gist of the accuseds
testimony concerning the status of the subject corporations is consistent with
the records of two government agencies -- the Social Security System (SSS) as
seen in defense exhibits 477 to 478, which were identified by witness Lorna
Dumlao and the Securities and Exchange Commission (SEC) as shown in prosecution
Exhibits J15 to R15 inclusive, and as testified to by
prosecution witness Ms. Annette Tamayo, the Officer-in-Charge of the SEC
Corporate Filing and Records Division.
Witness Dumlao affirmed that
two of the corporations, Alpha Funds Inc., and First LPL Land Syndication, Inc.
had been temporarily suspended on April 1, 1992 and May 19, 1997, respectively,
by the SSS for failure to remit mandatory contributions.[142]
On the other hand, witness Tamayo testified that while the subject corporations
were considered as existing (certificates of registration were not yet revoked
and the periods of existence had not yet lapsed) as of December 31, 1998, interestingly, the corporations failed to
submit their SEC-required reports and were considered inactive for several
years prior to and after 1998. In fact, she testified to the fact that some of
the corporations certificates of registration have already been revoked as a
result of their non-submission of the SECs annual reportorial requirements for
several years, while others are being summoned to a hearing on whether to
suspend or revoke their certificates of registration.[143]
Her testimony thus corroborated accused former President Joseph Ejercito
Estradas defense that the subject corporations were already inactive and
non-operating as of 31 December 1998.
As for the bank accounts, the
accused former Presidents testimony on said matter was summarized in his
Memorandum as follows:
ASIAN
UNITED BANK the amount of 548,121.84 was included in the entry cash on hand
and in bank;
SECURITY
BANK the amount of P12,289,236.88 was a contribution to the Partido ng Masang
Pilipino; it was not his money as he was just a trustee. Mr. Salvador Serrano,
Security Bank vice president, testified that accuseds highest placement was
made on April 21, 1998 in the amount of P10,000,000;
Seen as a sure winner in the May,
2001 election, he had a lot of money in April. Thus, he disclosed the following
details:
Document Exhibit
No. Page
Signature Card C 72
Investment savings account
Agreement dated 21 April 1998 C-1 72
Investment savings account
Agreement dated 21 May 1998 C-2 72
Investment savings account
Agreement dated 22 June 1998 C-3 72
The dates speak for
themselves.
KEPPEL
BANK the amount of P44,268,442.68 comprised contributions to the party over
time; it was not his money as he was just a trustee.
The accused former President
however, explains that the money in the banks comprised excess political
contributions not used by his political party[144]
and that the money was not for the accused to claim as his own but comprised
trust funds, to be used for various political ends. In other words, the accused
alleges that, except for the money in Asia United Bank which is already
included in his SALN[145],
he could not claim and declare the money in the banks as his own as he was
holding it in trust for his political party as its titular head since the money
purportedly came from political contributions given during his presidential
campaign.
Thus, the accused did not
deny the existence of the money in the banks as well as the existence of the
other corporations, but he sufficiently explained that he was only under the
impression that he did not have to state them in his SALN because (1) as to the
money in the banks, these were not his personal funds but merely held in trust
for his political party; and (2) as for the other corporations, they were
either defunct or non-operating and/or he and his wifes interests therein were
nominal. Further, accused former
President Estrada was able to point out that his and his familys interests in
the other corporations are already included in the generic term investments
on page 1 of the subject 1998 SALN. Verily, this point was not rebutted by the
prosecution nor made the subject of a thorough cross-examination as to what
were the specifics of the term investments on page 1 of the accused SALN.
Hence, being unrebutted evidence, they stand to refute prosecution evidence
that the omission of the subject entries in the SALN was deliberate and
malicious.
Another
consideration which negates the element of deliberate and willful effort to
commit a falsehood is the accuseds candid assertion that he did not personally
prepare his 1998 SALN. According to the accused, although he admitted to
signing his SALN, he always left it to his staff to prepare the same. Thus, he testified[146]
that:
WITNESS (Accused former President Joseph Ejercito
Estrada)
A Well, first,
I did not willfully violate the law. Second, since I became a public official
when I was a mayor, I always religiously file my Statement of Assets and
Liabilities. So that charges are false and I deny all those charges against me.
It is only I have to be honest that I do
not personally do my Statement of Assets and Liabilities. I just ask my staff
to prepare for me but I always tell them to comply with the requirements of law.
xxx xxx xxx
ATTY. FLAMINIANO
Q Now, who prepared your Statement of Assets and Liabilities
and Networth for the year ending December 31, 1998, Mr. President?
A It was my lawyer retired, the late Atty.
Dollete and Mr. Guerrero, Mr. Martin.
(Emphasis supplied)
Aside from having limited
participation in the preparation of his SALN, the accuseds testimony and
demeanor during cross-examination clearly showed he had little knowledge of his
wifes and childrens business and financial interests in certain
corporations. His testimony also
confirmed his insistence that the businesses which these corporations represent
either failed to operate or had long been closed, circumstances which further
belie an intentional and deliberate attempt to conceal the said assets in his
1998 SALN. Even on cross-examination,
accused former President Estrada did not falter nor waver on his testimony,
thus showing that he was a credible and consistent witness when he testified[147]
that:
(CROSS EXAMINATION OF ACCUSED JOSEPH
E. ESTRADA)
SP VILLA-IGNACIO
Q Mr.
President, are you aware of a letter from the Security and Exchange Commission
dated November 11, 2002, which letter has been marked as Exhibit K16
by the prosecution offered to establish the fact that First L.P.L Land
Syndication, Inc. was existing as of 31 December 1978. Are you aware of that letter, order rather?
ATTY. FLAMINIANO
May
we ask that the letter be shown to the witness, Your Honors?
SP VILLA-IGNACIO
We
will do that, Your Honors. For the
record, prosecution is showing to the witness an Order dated November 11, 2002,
issued by the Securities and Exchange Commission which has been marked as
Exhibit K14 and admitted as part of prosecutions evidence. We have furnished the defense a copy of the
same previously, Your Honors.
ATTY. FLAMINIANO
May
we just manifest for the record, Your Honors, that what is shown to the witness
is a photocopy of a document with marking Exhibit K16. There are also some figures in this document
127271-A then there is a date 4 23. The
document bears what appears to be
xxx xxx xxx
May
the record reflect, Your Honor, that the document being shown to the witness
bears the caption, the matter of the First L.P.L. Syndication, Inc. it says
For Violation of the Corporation Code and the Rules of the Submission of the
Required Reports and then below are the words for the Director. There is a blurred signature here which is
inaudible, below which is the name Rosalina Natividad Tesorio. There is nothing in this document which shows
that the witness was furnished with a copy of this document, Your Honor.
xxx xxx xxx
PJ DE CASTRO
Q Did
you get the question Mr. President?
A Yes,
sir, this is the first time that I saw this letter. I
think my wife is the one handling this investment in the L.P.L. and as far
as I could remember Mr. Conrad Leviste suffered stroke way back in 1997. I
think I cannot anymore bring out her investment as far as I can remember, sir. This is the first time I saw it Mr.
Prosecutor.
Q In
short, and what you are telling this Honorable Court Mr. President is that, you
are not aware of this order coming from the Securities and Exchange Commission which
has been marked by the prosecution as its Exhibit K16 and offered to
show that as of December 31, 1998, L.P.L. was still existing. Incidentally, the same exhibit has been
admitted by the Honorable Court.
A I still included in my Statement of Assets
and Liabilities (SAL).
Q It
is included?
A Yes,
sir.
Q In
your assets and liabilities? Could you
please point to us where in your SAL and First L.P.L has been declared by you
Mr. Witness?
A Well, it is not here.
SP VILLA-IGNACIO
Thank
you, Mr. President.
WITNESS
A I believe that according to my staff it was
included in my Statements of Assets and Liabilities, and the record will show.
SP VILLA-IGNACIO
Q It
is very clear then that it is not included.
Thank you, Mr. President.
A May
I continue, sir.
SP VILLA-IGNACIO
Later
on Mr. President.
xxx xxx xxx
PJ DE CASTRO
We
will allow the witness to complete his answer.
ATTY. FLAMINIANO
To
complete his answer.
WITNESS
A Well,
as I have said Mr. Conrad Leviste is the owner and majority stock holder of
L.P.L. and suffered a stroke in 1997, and in 1997, I think my wife, Sen. Loi, already pulled out her investment there, and
as far as I could remember and even then I believe that according to my staff
they included that in my Statement of Assets and Liabilities.
SP VILLA-IGNACIO
But,
you just examined the SAL and manifested in Court that is has not been declared
so?
xxx xxx xxx
PJ DE CASTRO
The
answer may remain.
He
said according to his staff it is included in his SAL.
A Your Honors, my answer is that it is my
wife who is handling that investment.
xxx xxx xxx
SP VILLA-IGNACIO
Q This
is the basis.
You
testified on May 24, 2006, that your spouse Dr. Loi Ejercito is just a nominee
of your daughter Jacqueline in the Asis, Ejercito Garments and this testimony
appears on page 57 of the TSN. I am
showing you page 57 of the TSN, and I would like you to read the question asked
by Atty. Flaminiano regarding Asis, Ejercito Garments, Inc. Will you read this portion Mr. Witness and
tell us if indeed you have given that answer in Court on May 24, 2006?
xxx xxx xxx
A I really forgot all about this. You will notice, that according to this
record my wife Sen. Loi is a share holder and my son Jinggoy with his friend,
Francis Yengco, and the number of shares and par value twenty (20) shares,
worth Two Thousand (P2,000). This was in
1986. This is a television production. Again
I repeat, that Sen. Loi was only a nominee of my son Senator Jinggoy. So, her share is only worth P2,000.00. I believe that even before I became a
senator, the corporation became dormant already.
SP VILLA-IGNACIO
Thank
you, Mr. President.
Q Mr.
President, are you aware that on the basis of public records your Sps. Dr. Loi
Ejercito and your daughter Jacqueline are incorporators and stock holders of
Asis, Ejercito Garments, Inc. and not merely a nominee?
A Well,
in as far as the share is only P2,000.00 worth, I did not bother to interfere.
Sen. Loi my wife did not bother to inform me about it. Sila sila lang ang nagkakaalaman noong
nalugi na saka ko nalalaman, sir.
INTERPRETER
They are the only ones who knew about it
and when they are on the losing end it is the only time that they informed,
sir. My wife did not bother to inform me
about this. My wife and children did not
bother to inform me about it, sir.
xxx xxx xxx
SP VILLA-IGNACIO
Q Mr.
President, do you have any document or proof to show the true and correct
status of Asis, Ejercito Garments, Inc. as of December 31, 1998?
A Mr. Prosecutor, I am sorry to tell you that
in fact I dont know about that corporation, it is only between my wife and my
children I dont know anything about it, sir.
Q It is a corporation operated by your wife
and children and you dont have any personal knowledge about that?
A Yes, sir, I am so busy and I was a Senator
then and I dont interfere in their business, sir.
xxx xxx xxx
Q Now,
you said that your wife, your spouse rather was merely a nominee in the same
way that you testified that your spouse was merely or is merely a nominee in
Asis, Ejercito Garment, Inc. are you aware that on the basis of public records
Mrs. Loi Ejercito is an incorporator and stock holder and the treasurer of the
corporation? I am referring to Asis,
Ejercito Garment, You are not aware of that?
A As I have said earlier, I am not aware of
that business, sir.
SP VILLA-IGNACIO
This
is reflected in prosecutions evidence F14 and the position of Mrs.
Ejercito as treasurer indicated in page 8 of the Articles of Incorporation,
Your Honors.
Q Now,
going back to 24K, it is also your position for failing to indicate in
your SAL for year 1998, what you claimed
to be the participation of Mrs. Luisa Ejercito as merely a nominee of 24K
International. Are you aware that on the
basis of public record and I am referring to Exhibit G14 which is
the Certificate of Registration issued by the Securities and Exchange
Commission just to guide the defense and Exhibit G14-1 which is the
Articles of Incorporation, your spouse Sen. Loi Ejercito is not a nominee but
an incorporator and a stockholder with 1,000 shares registered in her
name. You are not aware of that?
A As I have said earlier, I am not aware of
all the businesses that they organized.
So, the bottom line is that, that is way back before I became the
Vice-President or Senator. Those
corporations were already closed and I believe it is not my obligation to
report it in my Statement of Assets and Liabilities.
Q You are saying that the corporation has
been closed before 31 December 1998?
A Yes, sir.
SP VILLA-IGNACIO
Q Question,
do you have documents or proof to show and establish the true status of the
corporation 24K International Food, Inc.?
A I do not have the documents right now. But, I am very sure that this was closed
before I became a Senator and I would say that, again, it is not my obligation
to put it in my Statement of Assets and Liabilities.
SP VILLA-IGNACIO
Thank
you, Mr. President.
WITNESS
Whatever the share of my wife there I did
not ask her or my children. I didnt
bother to ask them because I trust them whatever they do. My wife and my children. So, it is their business, I dont need to
interfere in their business because I am very busy. I am a very busy man.
xxx xxx xxx
SP VILLA-IGNACIO
Q There
is also another corporation not included by you in your 1998 Statement of
Assets and Liabilities and this is the Prime Entertainment for Television
Production, Inc. Are you familiar with this corporation, Prime Entertainment
for Television Production, Inc.?
A May I refer to my records because those
corporations were claimed 15 years ago and I cannot remember anymore, sir.
PJ DE CASTRO
You
may show the document to the witness.
SP VILLA-IGNACIO
Its
not really a document Your Honors, but notes.
PJ DE CASTRO
His
notes.
xxx xxx xxx
SP VILLA-IGNACIO
Q Having
looked at the notes prepared by the defense or staff?
A
Staff, Your Honor.
SP VILLA-IGNACIO
Thank
you, Mr. President.
Q There
is here a page 56 of the transcript a question asked by Atty. Flaminiano:
Now, let us go to Prime
Entertainment for Television Production, Inc.
Are you familiar with this corporation Mr. President?
And
an answer was given by you:
A. Yes. According to the records, Senator Loi, my wife
was the only nominee of my son Jinggoy.
You were asked this question and
have given that answer, is it not?
A Yes, sir, but this is 1986. This is 20 years ago. Thats what Sen. Jinggoy told me that his
mother is only a nominee because I am not privy to all these businesses that
they entered into from the very beginning and I believed that this happened
even before I became a Senator and it is already non-existent. It is already non-operational so I dont feel
obligated to put this in my Statement of Assets and Liabilities.
Q Having
given that answer, Mr. President, do you have any document to show and prove
and establish the true and correct status of Prime Entertainment for Television
Production, Inc. as of December 31, 1998?
xxx xxx xxx
SP VILLA-IGNACIO
The
same question, Your Honor. There is a
pending question.
Q Do
you have any document?
A As I have said, sir, this is 20 years ago
and I bank only in what my son, Sen. Jinggoy, told me and I feel again, I
repeat, that I dont feel obligated to report it in my Statement of Assets and
Liabilities because this is already dormant.
Q In
other words, Mr. Witness, you dont have any document or proof to establish the
true status of the corporation as of 31 December 1998?
A Maybe my son or my wife has.
xxx xxx xxx
JUSTICE VILLARUZ
Q Mr.
President, you mentioned that Sen. Loi and Sen. Jinggoy were acting as nominees
in this corporation?
A Yes,
sir.
Q Do
you know for whom they were acting as nominees?
A As I was saying, not for me for sure. I know they were acting for my daughter
Jacqueline. I am not really aware of
this corporation that they organized.
Q So,
you do not know for whom they were acting as nominees?
A No, because that was already 20 years ago,
I dont remember.
xxx xxx xxx.
(Emphasis supplied)
To sum it all up, the third
element of perjury has not been proven at all by the prosecution. Perjury being
a felony by dolo, there must be malice on the part of the accused.[148]
Willfully means intentionally; with evil intent and legal malice, with the
consciousness that the alleged perjurious statement is false with the intent
that it should be received as a statement of what was true in fact. It is
equivalent to "knowingly." "Deliberately" implies meditated
as distinguished from inadvertent acts.[149]
It must appear that the accused knows his statement to be false or as
consciously ignorant of its truth.[150]
The missing crucial factor is the accuseds
deliberate and willful assertion of a falsehood as the above evidence convinces
the Court that perjury was not committed in this case. The accused, who did not
personally prepare his 1998 SALN, may be faulted for his failure to ascertain
whether or not his SALN had fully disclosed his and his wifes interests in
compliance with the law, but the same does not necessarily amount to a
deliberate and willful assertion of a falsehood in the absence of proof of
malice on his part. Certainly, accused
former President Joseph Ejercito Estradas inattention to the requirements of
R.A. No. 6713 does not merit the filing of this criminal action as it should
have first been rectified through the corrective mechanism precisely prescribed
by the said law.
Ordinarily, any discrepancy
in the entries in a public officers SALN or any situation of non-compliance
with the rules of R.A. 6713 should have been resolved at the administrative
level such that an accused should first be afforded the opportunity to avail of
the Review and Compliance Procedure provided for by Republic Act No. 6713. This
brings the Court to a discussion on the relevance of the provisions of R.A.
6713 in the prosecution of perjury under Article 183 of the Revised Penal Code
as it mandates the establishment of review and corrective procedures to ensure
the public officers proper compliance with its provisions.
FOURTH
ELEMENT: That the sworn statement or affidavit containing the falsity is
required by law or made for a legal purpose
The
fourth element of perjury entails that the sworn statement or affidavit
containing the falsity must be required by law.
In the instant case, the relevant law, which the Court has taken
judicial notice of, is Republic Act No. 6713, otherwise known as THE CODE OF
CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES.[151] On this point, there is no issue that the
fourth element is present herein considering that the SALN subject of the
instant case is the sworn statement required by law, particularly R.A.
6713.
A
crucial issue in this case however, shall remain unresolved if the case ends
with just the Courts taking cognizance of Section 8 of R.A. No. 6713, which is
the provision that obligates public officials and employees to accomplish and
submit declarations under oath of their assets, liabilities, net worth and
financial and business interests, in disregard of the other important provision
in Section 10 of R.A. No. 6713 on the review and compliance procedure.
The
defense has even raised the issue of selective prosecution and invidious
discrimination for the accuseds not having been provided the opportunity to
avail of the said corrective process. Allegedly, there have been previous cases[152]
against public officials, which were later dismissed with the finding that
penalizing an employee for a perceived breach of the provisions on SALN,
without the benefit of allowing him to avail of the corrective mechanism under
the law, was premature.
RELEVANCE
OF R.A. NO. 6713 TO THE PROSECUTION OF PERJURY UNDER ARTICLE 183 OF THE REVISED
PENAL CODE
It is basic in statutory construction that if the
legislature passes a special law while there is a general law covering the same
state of things or facts, the special law is deemed to supercede and prevail
over the general law being the later expressed intention of the legislature[153].
In the instant case, the general law is the Revised Penal Code (RPC), in
particular Article 183 thereof pertaining to Perjury, and the special law is
R.A. No. 6713, having been passed only in 1989 and specifically for the purpose
of promoting a high standard of ethics in public service. As the Information
herein asserts, the elements of Article 183 of the RPC can only be made
applicable to the instant case if the same are considered in relation to the
provisions of R.A. No. 6713.
The accomplishment of the SALN under oath and
compulsory disclosure of matters such as real and personal property,
investments, cash on hand and in banks, liabilities and business and financial
interests all become material because these are required by Section 8 of R.A.
No. 6713. Hence, the provisions of R.A. No. 6713 are not irrelevant to any
prosecution for Article 183 for as long as the information so holds that the
sworn statement or affidavit was filed as required by R.A. No. 6713 and/or that
the information was filed in relation to R.A. No. 6713.
Pursuing the same line of thought, the entire special
law and not merely parts of it, should be applied or should be read together
with the provisions of the general law. Thus, Sections 1 to 17 of R.A. No. 6713
are all relevant to Article 183 and all the duties, privileges and benefits
contained therein should be made applicable and available to the persons
charged in relation thereto.
As pointed out by the accused, R.A. No. 6713 and its
implementing rules prescribe a review procedure to determine whether or not a
public official has properly complied with the requirements for the filing of
his statement of assets, liabilities and net worth.
Section
10 of R.A. 6713 provides:
Section 10. Review and Compliance Procedure. -
(a) The designated Committees of
both Houses of the Congress shall establish procedures for the review of the
statements to determine whether said statements have been submitted on time,
are complete, and are in proper form. In the event a determination is made that
a statement is not so filed, the appropriate Committee shall so inform the
reporting individual and direct him to take the necessary corrective action.
(b)
In order to carry out their responsibilities under this Act, the designated
Committees of both Houses of the Congress shall have the power with their
respective jurisdictions, to render any opinion interpreting this Act, in
writing, to persons covered by this Act, subject in each instance to the
approval by affirmative vote of the majority of the particular House concerned.
The
individual to whom an opinion is rendered, and any other individual involved in
a similar factual situation, and who, after issuance of the opinion acts in
good faith in accordance with it shall not be subject to any sanction provided
in this Act.
(c)
The heads of other offices shall perform
the duties stated in subsections (a) and (b) hereof insofar as their respective
offices are concerned, subject to the approval of the Secretary of Justice,
in the case of the Executive Department and the Chief Justice of the Supreme
Court, in the case of the Judicial Department.
Prescinding
from the foregoing, it is clear that the law provides a corrective mechanism
which allows any public official or employee to take the necessary measures to
properly comply with the laws requirements before penal sanctions can be imposed. Upon submission of his SALN to the proper
authority, any public official or employee has the benefit of the review
process, which would determine his compliance with the requirements of the law
and prescribe the means for the correction of any finding against him. It is
only upon his refusal to comply with the corrective process that the public
official or employee should be subject to penal sanctions.
In the case at bar, the accused insists that said
corrective process was denied him. If the law should be applied, the instant
case should have been referred to the Secretary of Justice, who is in charge of
the review and compliance process for the executive department. But with the
present circumstances of the accused, who is no longer connected with the
executive department, the pendency of this case and the impending decision, the
matter is now moot and academic. This
notwithstanding, the Court is not precluded from determining whether given the
factual circumstances, accused can actually be held liable for perjury under
Article 183 in view of his alleged omissions in his SALN. As it is, considering that the elements of
the crime of Perjury under Article 183 of the Revised Penal Code have not been
proven with moral certainty by the prosecution, the administrative remedies
provided under R.A. 6713 have become immaterial and irrelevant.
The highest consideration of public office is
enshrined in the Declaration of Principles and State Policies under Article II
of the 1987 Constitution which provides that:
SECTION
27. The State shall maintain honesty and
integrity in the public service and take positive and effective measures
against graft and corruption.
Relatively, this state principle is echoed in Article XI of the 1987
Constitution on accountability of being in public office which declares that:
SECTION
1. Public office is a public trust.
Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
The instant case articulates the principle that no
one is above the law as no less than the person holding the highest position
in the land, former President Joseph Ejercito Estrada, is being held liable and
is charged with the crime of Perjury defined in and penalized by Article 183 of
the Revised Penal Code allegedly for his failure to include in his Statement of
Assets, Liabilities and Net Worth (SALN) certain assets consisting of cash in
three (3) banks and corporate holdings or connections. This notwithstanding,
however, it is likewise a constitutional[154]
and legal truism that the accused shall be presumed innocent until the contrary
is proved.[155]
In criminal law, the quantum of evidence for
conviction of an accused is that which produces moral certainty in an
unprejudiced mind that the accused is guilty beyond reasonable doubt.[156] Conviction must rest on hard evidence showing
that the accused is guilty beyond reasonable doubt of the crime charged. In criminal cases, moral certainty not mere
possibility determines the guilt or the innocence of the accused. Even when
the evidence for the defense is weak, the accused must be acquitted when the
prosecution has not proven guilt with the requisite quantum of proof required
in all criminal cases.[157]
After a judicious evaluation of the evidence in this
case, the Court cannot assert with moral certainty that accused former
President Joseph Ejercito Estrada is guilty of the crime charged. All told, the
prosecution failed to establish the guilt of the accused with moral certainty.
Its evidence falls short of the quantum of proof required for conviction for
the crime of Perjury under Article 183 of the Revised Penal Code. Accordingly,
the constitutional presumption of the petitioner's innocence must be upheld and
he must be acquitted.
WHEREFORE,
judgment is hereby rendered in Criminal Case No. 26905 finding the accused
former President Joseph Ejercito Estrada NOT GUILTY of the crime of
Perjury defined in and penalized by Article 183 of the Revised Penal Code, and
he is hereby ACQUITTED.
Accordingly, the Hold Departure Order dated February
4, 2002 issued by the Court against accused former President Joseph Ejercito
Estrada is hereby recalled and rendered functus oficio.
SO ORDERED.
Sgd.
TERESITA
LEONARDO DE-CASTRO
Presiding Justice
Chairperson
Sgd.
FRANCISCO H.
VILLARUZ, JR.
Associate Justice
Sgd.
DIOSDADO M.
PERALTA
Associate Justice
A T T E S T A T I O N
I attest
that conclusions in the above decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
Sgd.
Chairperson, Special Division
Pursuant to Article VIII, Section 13
of the Constitution, and the Division Chairmans Attestation, it is hereby
certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
Presiding Justice
[1] Records, Volume I, Accused Estradas Motion to
Quash and Reset Arraignment, Pages 89-101
[2] Records, Volume I, Resolution of March 6, 2002,
Pages 164-167
[3]
[4] Records, Volume 3, Joint Resolution, Pages 89-107
[5] Records, Volume 3, Resolution promulgated on
September 3, 2004, Pages 115-121
[6] Records, Volume 53, Resolution promulgated on March
7, 2007, Pages 463-476
[7] Records, Volume 55, Manifestation of the Prosecution
dated April 23, 2007, Page 12
[8] TSN dated May 8, 2002
[9] See Exhibit A and submarkings
[10] TSN dated October 30, 2002
[11] See Exhibit B -perjury and submarkings
[12] TSN dated May 8, 2002; TSN dated May 15, 2002; TSN
dated May 20, 2002; and TSN dated November 25, 2002
[13] See Exhibit C-1 and submarkings
[14] See Exhibit C-2 and submarkings
[15] See Exhibit C-3 and submarkings
[16] See Exhibit C-4 and submarkings
[17] See Exhibit C-5 and submarkings
[18] See Exhibit C-6 and submarkings
[19] See Exhibit C-7 and submarkings
[20] See Exhibit C-8 and submarkings
[21] See Exhibit C-9 and submarkings
[22] See Exhibit C-10 and submarkings
[23] See Exhibit C-11 and submarkings
[24] See Exhibit C-12 and submarkings
[25] See Exhibit C-13 and submarkings
[26] See Exhibit C-14 and submarkings
[27] See Exhibit C-15 and submarkings
[28] See Exhibit C-16 and submarkings
[29] See Exhibit C-17 and submarkings
[30] See Exhibit C-18 and submarkings
[31] See Exhibit C-19 and submarkings
[32] See Exhibit C-20 and submarkings
[33] See Exhibit C-21 and submarkings
[34] See Exhibit C-22 and submarkings
[35] See Exhibit C-23 and submarkings
[36] See Exhibit C-24
[37] See Exhibit C-25
[38] See Exhibit C-26
[39] See Exhibit C-27
[40] See Exhibit C-28
[41] See Exhibit C-29
[42] See Exhibit C-30
[43] See Exhibit C-31
[44] See Exhibits C; CC; and CCC, including
submarkings
[45] TSN dated May 15, 2002 and TSN dated May 20, 2002
[46] See Exhibit C-7
[47] TSN dated November 6, 2002, TSN dated November 20,
2002, and TSN dated November 27, 2002
[48] See Exhibit D14
[49] See Exhibit D14-9
[50] See Exhibit D14-12
[51] See Exhibit D14-1
[52] See Exhibit D14-5
[53] See Exhibits D14-15;D14-15-A ; and D14-15-
[54] TSN dated November 6, 2002
[55] See Exhibits E14; E14-1;
and E14-2, including submarkings
[56] See Exhibits F14; F14-1;
and F14-2, including submarkings
[57] See Exhibits G14; G14-1;
and G14-2, including submarkings
[58] See Exhibits H14; H14-1;
and H14-2, including submarkings
[59] See Exhibits I14; I14-1;
and I14-2, including submarkings
[60] See Exhibits J14; J14-1;
and J14-2, including submarkings
[61] See Exhibits K14; K14-1;
and K14-2, including submarkings
[62] See Exhibits L14; L14-1;
and L14-2, including submarkings
[63] See Exhibits M14; M14-1;
and M14-2, including submarkings
[64] TSN dated November 27, 2002
[65] See Exhibits E14 to M14,
inclusive of submarkings
[66] TSN dated November 27, 2002 and TSN dated January
15, 2003
[67] See Exhibits J15 to R15,
inclusive of submarkings
[68] TSN dated May 24, 2006 pages 49.
[69]
[70]
[71] TSN dated May 24, 2006, page 52.
[72] Ibid.
[73]
[74] Ibid.
[75]
[76] TSN dated May 24, 2006, page 60.
[77]
[78]
[79]
[80]
[81] TSN dated May 24, 2006, page at 69.
[82]
[83] Ibid.
[84]
[85] Ibid.
[86]
[87]