US Naval Criminal Investigation Service agent Guy Papageorge, quoting from his investigation report, said Lance Cpl. Daniel John Smith, "admitted he had sexual intercourse with the Filipino woman inside the van and that the other Marines cheered him on," testimony that was also given in an earlier hearing by the van’s driver, Timoteo Soriano.
"(Smith) likewise admitted he used a condom," Papageorge told the Makati City regional trial court.
He also said that when he asked Smith if the sex was consensual two days after the incident, Smith answered: "Yes, it was consensual."
Papageorge and Ronald Veltz, another Navy investigator, appeared in court after the US embassy agreed to let him testify for the prosecution in the trial of the four Marines, reversing an earlier decision that threatened to derail the proceedings.
Last week, the US embassy caused a stir by saying the issue of diplomatic immunity would prevent Navy investigators from testifying. Philippine prosecutors accused the US embassy of holding up the proceedings and Makati RTC Judge Benjamin Pozon gave US officials until yesterday to allow the witnesses to appear in court.
Prosecutors allege that Smith raped the woman, identified only as "Nicole," inside a Starex van while Lance Cpls. Dominic Duplantis and Keith Silkwood and Staff Sgt. Chad Carpentier cheered him on. The Marines had just finished counterterrorism maneuvers with Philippine troops.
The rape charges are punishable by up to 40 years in prison. The Marines have refused to answer the charges and the judge entered a plea of innocent for them.
Papageorge said Smith also told him he met the 22-year-old plaintiff at the Neptune Bar inside the former US Naval base at Subic Bay, Olongapo City in the province of Zambales on the night of Nov. 1, 2005, when the alleged rape took place.
Carpentier told investigators he saw Smith and Nicole dancing and, later, kissing as the woman sat on Smith’s lap, Papageorge testified.
Private prosecutor Evalyn Ursua earlier said testimony confirming Smith’s admission of consensual sex with Nicole gave an important boost to the case against the Marines and that Smith would need to prove his claim that the sex was indeed consensual.
Prosecutors and several witnesses had earlier testified that Nicole was drunk when Smith carried her on his back to the van.
Papageorge said he spoke with Carpentier, whom he referred to as the leader of the pack, being a staff sergeant who exercises control over lance corporals and Smith.
He said Carpentier admitted authorizing his co-accused to bring the victim and load her into a Hyundai Starex van.
According to Papageorge, Smith even detailed the sexual positions he assumed with Nicole — with him "on top" and "on the side" — before someone yelled "She’s a bitch," probably offending Nicole, who seemed to have been insulted by the outburst.
Papageorge said he went to the Subic Bay Metropolitan Authority’s (SBMA) Law Enforcement Division (LED) office to investigate but Nicole did not arrive for her interview with him shortly after she accused the four defendants of rape.
Nicole’s absence prompted Papageorge to go to the Grand Leisure Hotel along Waterfront Road, where the victim was, to find out why she was delayed.
When he arrived, he said he saw the victim sitting on a bench crying while an assistant manager of the hotel was being nasty and apparently arguing with her.
The hotel official allegedly tried to prevent him from talking to the victim as he tried to deliver a piece of paper to her with a telephone number.
"It seemed to me that he was tormenting her," Papageorge said in court.
Papageorge said he brought the girl to the LED before proceeding to the US Navy ship USSX to find the accused and conduct his investigation.
In a statement, the US embassy said their government’s decision to allow Papageorge and Veltz to testify was "consistent with our commitment to seeing that justice is served in a fair and impartial trial."
The two NCIS agents posted to the US embassy have had their diplomatic immunity under the Vienna Convention waived by the US government "for the limited purpose of testifying at this trial."
As another gesture of goodwill, the US embassy added that its government will "also seek to bring back to the Philippines two additional NCIS employees who participated in the investigation of this case."
"This decision was made following discussions with the Philippine Department of Foreign Affairs (DFA) and upon completion of the appropriate steps for requesting court testimony from persons covered by the Vienna Convention," the US embassy said.
The NCIS "provided the entirety of its preliminary written reports beginning November 2005 to both the Office of the City Prosecutor in Olongapo and the defense counsels," the US embassy said.
It also reiterated that the US government has "worked with Philippine authorities under the precepts of the Visiting Forces Agreement (VFA) throughout the investigation of this alleged incident and will continue to do so through the completion of the judicial proceedings.
"The US remains committed to seeing that justice is served and looks forward to a fair and impartial process that can provide a just outcome," the US embassy added. — Michael Punongbayan, Pia Lee-Brago and AP