Sandigan junks graft, extort raps vs Nani

The Sandiganbayan junked the robbery/extortion and graft charges filed against former justice secretary Hernando Perez and three others in connection with the $2-million extortion case filed by former Manila congressman Mark Jimenez.

In separate decisions issued yesterday, the First and Second Divisions of the Sandiganbayan dismissed the two charges on technicality, citing lapses by the Office of the Ombudsman when it delayed prosecution of the accused.

The second division reversed its earlier decision on a petition of Perez to quash the extortion charge as penalized under Article 293 and 294 of Revised Penal Code and ruled that the Ombudsman had lost its authority to pursue the case due to “unreasonable delay in the preliminary investigation.”

The anti-graft court cited the violation of the Office of the Ombudsman in recognizing the constitutional right of the accused for speedy trial as the main reason for dismissal of the extortion case.

“There being a clear violation of the constitutional right of the accused, the prosecution is ousted of any authority to file the information and we hereby order the quashing of the information and the consequent dismissal of this case,” stated the 10-page resolution, which was penned by the chairman of the division, Associate Justice Edilberto Sandoval, and promulgated last Nov. 20.

The division also ruled that the element of intimidation, which characterizes robbery for the seizure or taking of property from Jimenez on Feb. 13, 2001, does not hold water due to the unreasonable delay in the preliminary investigation.

“The Ombudsman should have demanded a reasonable explanation from the complainant who was then a congressman, wealthy and influential and in whose house the alleged intimidation took place, why he was filing the complaint only on Dec. 23, 2002 a matter of more than 18 months,” the Sandiganbayan pointed out.

The two members of the second division of the Sandiganbayan, Associate Justices Teresita Diaz-Baldos and Samuel Martires, concurred with the decision.

The anti-graft court also ordered the cancellation of the bonds posted by the four accused as well as the hold departure order issued against them.

The Sandiganbayan First Division also dismissed the separate graft charges filed against Perez and the three others in a five-page resolution of a similar motion for reconsideration on the court’s earlier ruling junking the petition of the accused to quash the case.

Presiding Justice Diosdado Peralta, chairman of the first division who penned the decision, said prosecutors failed to prove that Jimenez and three co-accused – Perez’s wife Rosario, brother-in-law Ramon Arceo and business associate Ernest Escaler – had violated Section 3(b) of RA 3019 (Anti-Graft and Corrupt Practices Act), which refers to “directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other part, wherein the public officer in his official capacity had to intervene under the law.”

The anti-graft court ruled that the case filed by the Ombudsman was defective. Division members and Associate Justices Rodolfo Ponferrada and Alexander Gesmundo both concurred.

“The court finds that the factual/material allegations in the subject information do not constitute the offense of Section 3(b) of RA 3019… and therefore, it is constrained to quash the said information,” the decision stated.

The Sandiganbayan said the prosecution failed to present the necessary elements that constitute graft – especially since the very contract transaction that Jimenez asked is not a government transaction contract but a Witness Protection Program (WPP) contract under the watch of Perez as then secretary of justice.

The anti-graft court ruled that the contract referred to by law is a government transaction to have material gain and not any other contract.

“The court finds untenable the prosecution’s contention that the execution by Mark Jimenez of the affidavits in connection with his pending application for admission in the WPP is the very contract or transaction required by the offense charged in this case,” the resolution explained.

“The court takes note of the admission made by the prosecution in its memorandum that the transaction involving Mark Jimenez’s execution of affidavits for his admission to the WPP is not yet a perfected contract between the government and Mark Jimenez since it is still in its negotiation phase because of the refusal of Mark Jimenez to execute the affidavits against certain individuals,” it added.

The Sandiganbayan also stressed that such admission of Jimenez is “another indication that there is indeed no contract or transaction to speak of that is covered under the fourth element of the offense of violation of Section 3(b) of RA 3019.”

With these two decisions by the first and second divisions of Sandiganbayan, only two remaining cases are now pending before the anti-graft court against Perez: another count of graft before the Sandiganbayan Fourth Division and the falsification of public documents charges pending before the Third Division.

The cases stemmed from Jimenez’s complaint that Perez extorted $2 million from him.

Jimenez alleged that Perez asked for the amount while promising to stop pressuring him to testify against former President Joseph Estrada in the plunder charges filed against the ousted chief executive.

In his complaint-affidavit, Jimenez claimed he was forced to come across with $2 million after Perez threatened and intimidated him and his family with bodily harm and incarceration in a city jail with hardened criminals and drug addicts “unless I execute damaging affidavits against President Estrada and his cronies and associates.”

Jimenez, who himself was jailed in the US for illegal campaign contribution, revealed that he deposited the funds in Coutts Bank in Hong Kong in February 2001.

Records showed that Jimenez transferred $2 million on Feb. 23, 2001 in beneficiary account HO133706 to Coutts Bank.

The money came from Trade and Commerce Bank in Cayman Islands through the Chase Manhattan Bank in New York, according to the Ombudsman’s panel.

The panel ruled that Escaler, owner of the HK Coutts Bank account, gave no explanation to show that the transfer to his account was the outcome of a legitimate transaction with Jimenez.

The Ombudsman said that the Perez couple’s declaration that the funds were proceeds of the sale of their Batangas property, Malvarosa Ventures Inc., to Escaler was inconsistent with an earlier claim by Rosario and Arceo that the money was part of a family inheritance.

It was earlier reported that Jimenez brokered the $470-million power contract with Argentine firm Industrias Metalurgicas Pescarmona Sociedad Anonima or IMPSA for which he received $2 million as commission. Jimenez denied the allegations.

The Ombudsman ruled that the withdrawal of the complaint made by Jimenez did not carry weight as it was “executed as an afterthought.”

Justice Secretary Raul Gonzalez believes that the case filed before the Sandiganbayan was weak since the prosecution no longer has any witness following the withdrawal of complaint by Jimenez.