Cambe vs. Office of the Ombudsman Case Digest

Richard A. Cambe vs. Office of the Ombudsman, et al./Senator Ramon "Bong" Revilla, Jr. Vs. Office of the Ombudsman, et al./Senator Ramon "Bong" Revilla, Jr. Vs. Office of the Ombudsman, et al./Richard A. Cambe Vs. Office of the Ombudsman, et al./John Raymund De Asis Vs. Conchita Carpio Morales, et al./Ronald John Lim Vs. Conchita Carpio Morales, et al./Janet Lim Napoles Vs. Conchita Carpio Morales, et al./Mario L. Relampagos, et al. Vs. Sandiganbayan and People of the Philippines

G.R. Nos. 212014-15/G.R. Nos. 212427-28/G.R. Nos. 212694-95/G.R. Nos. 213477-78/G.R. Nos. 213532-33/G.R. Nos. 213536-37/G.R. Nos. 218744-59. December 6, 2016

Facts

Before this Court are consolidated petitions filed by petitioners Senator Ramon "Bong" Revilla, Jr. (Sen. Revilla), Richard A. Cambe (Cambe), Janet Lim Napoles (Napoles or Janet Napoles), John Raymund De Asis (De Asis), and Ronald John Lim (Lim), which commonly assail the Joint Resolution dated March 28, 2014 and the Joint Order dated June 4, 2014 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-13-0316 and OMB-C-C-13-0395 finding probable cause to indict them, along with several others, for the crimes of Plunder, defined and penalized under Section 2 in relation to Section 1 ( d) (1 ), (2), and ( 6) of Republic Act No. (RA) 7080, as amended (one [1] count) and/or of violation of Section 3 (e) of RA 30195 (sixteen [16] counts).

Petitioners are all charged as co-conspirators for their respective participations in the illegal pillaging of public funds sourced from the Priority Development Assistance Fund (PD.AF) of Sen. Revilla for the years 2006 to 2010, in the total amount of P517,000,000.00.

As alleged, the PDAF scheme commences with Napoles meeting with a legislator -in this case, Sen. Revilla -with the former giving an offer to "acquire" his PDAF allocation in exchange for a "commission" or "kickback" amounting to a certain percentage of the PDAF. Upon their agreement on the conditions of the PDAF acquisition, including the project for which the PDAF will be utilized, the corresponding Implemeting Agencies (IA) tasked to implement the same, and the legislator's "commission" or "kickback" ranging from 40-60% of either the project cost or the amount stated in the Special Allotment Release Order (SARO), the legislator would then write a letter addressed to the Senate President for the immediate release of his PDAF, who in tum, will endorse such request to the DBM for the release of the SARO. By this time, the initial advance portion of the "commission" would be remitted by Napoles to the legislator. Upon release of the SARO, Napoles would then direct her staff -including whistleblowers Benhur Luy (Luy), Marina Sula (Sula), and Merlina Suñas (Suñas) -to prepare PDAF documents containing, inter alia, the preferred JLN-controlled NGO that will be used as a "conduit" for the implementation of the project, the project proposals of the identified NGO, and the endorsement letters to be signed by the legislator and/or his staff, all for the approval of the legislator; and would remit the remaining portion or balance of the "commission" of the legislator, which is usually delivered by her staff, Lim and De Asis.

Once the documents are approved, the same would be transmitted to the IA which would handle the preparation of the Memorandum of Agreement (MOA) to be executed by the legislator's office, the IA, and the chosen NGO. Thereafter, the DBM would release the Notice of Cash Allowance (NCA) to the IA concerned, the head/official of which, in tum, would expedite the transaction and release of the corresponding check representing the PDAF disbursement, in exchange for a ten percent (10%) share in the project cost. Among those tasked by Napoles to pick up the checks and deposit them to the bank accounts of the NGO concerned were Luy, Suñas, and De Asis. Once the funds are in the account of the JLN-controlled NGO, Napoles would then call the bank to facilitate the withdrawal thereof. Upon withdrawal of the said funds by Napoles's staff, the latter would bring the proceeds to the office of JLN Corporation for accounting. Napoles would then decide how much will be left in the office and how much will be brought to her residence in Taguig City. De Asis, Lim, Luy, and Suñas were the ones instructed to deliver the money to Napoles's residence. Finally, to liquidate the disbursements, Napoles and her staff would manufacture fictitious lists of beneficiaries, liquidation reports, inspection reports, project activity reports, and similar documents that would make it appear that the PDAF-funded projects were implemented when, in fact, they were not since they were actually inexistent or, in other words, "ghost" projects. Under this modus operandi, Sen. Revilla, with the help of petitioners, among others, allegedly funneled his PDAF amounting to around P517,000,000.00 to the JLN-controlled NGOs and, in return, received "commissions" or "kickbacks" amounting to at least P224,512,500.00.

In his defense, Revilla filed his Counter-Affidavit dated January 16, 2014, contending that: (a) his and Cambe's signatures in the PDAF documents were forgeries; (b) the utilization of his PDAF had "always been regular and above-board."; (c) his involvement in the release of his PDAF is limited; and (d) there is "no credible proof" to show that he committed said illegal acts and that conspiracy exists between him and all the other persons involved in the PDAF scam.

Cambe, on the other hand, filed his Counter-Affidavit dated January 20, 2014 and Supplemental Counter-Affidavit dated March 12, 2014, maintaining that: (a) his signatures in the PDAF documents were all forgeries; and (b) he did not receive any money from Sen. Revilla's PDAF nor connive with any of the alleged co-conspirators to acquire ill-gotten wealth.

In a Joint Resolution68 dated March 28, 2014 (March 28, 2014 Joint Resolution), the Ombudsman found probable cause to indict, among others, petitioners Sen. Revilla, Cambe, Napoles, De Asis, and Lim of one (1) count of Plunder, and all the petitioners (along with several others), except Lim, of sixteen (16) counts of violation of Section 3 (e) of RA 3019.

Thus, the Ombudsman held that probable cause exists against Sen. Revilla, Cambe, Napoles, De Asis, and Lim for Plunder, considering that: (a) Sen. Revilla was a public officer at the time material to the charges; ( b) with the help of his co-accused, who are public officers and private individuals, Sen. Revilla amassed, accumulated, or acquired HI-gotten wealth through their intricate modus operandi as described above; and ( c) such ill-gotten wealth amounted to at least P224,512,500.00, way more than the threshold amount of P50,000,000.00 required in the crime of Plunder..

Cambe seeks to annul and set aside the Ombudsman's March 14, 2014 Joint Order which denied his motion to suspend proceedings, arguing that the COA's issuance of an Order of Execution is a condition precedent to the filing of the criminal complaints against him.

Sen. Revilla seeks to annul the March 28, 2014 Joint Resolution and the June 4, 2014 Joint Order of the Ombudsman finding probable cause against him for the crimes charged. Among others, Sen. Revilla faults the Ombudsman for allegedly disregarding his defense of forgery, and further contends that in the absence of other competent testimony, the Ombudsman cannot consider the whistle blowers' testimonies who purportedly were his co-conspirators in the PDAF scam, pursuant to the res inter alias acta rule.

Napoles similarly seeks to nullify the Ombudsman's March 28, 2014 Joint Resolution and June 4, 2014 Joint Order finding probable cause against her for Plunder and for violation of Section 3 (e) of RA 3019. Essentially, she argues that the complaints did not establish the specific acts of the crimes she supposedly committed. She likewise contends that since she is not a public officer, she cannot be subjected to prosecution by the Ombudsman before the Sandiganbayan. Napoles's

Issues:

1. Whether the COA's issuance of an Order of Execution is a condition precedent to the filing of the criminal complaints.
2. Whether the Ombudsman's finding of probable cause against all petitioners are correct.

Rulings

1. No. The Court disagrees. The administrative aspect of the cases against Cambe and Sen. Revilla in relation to the COA's audit is clearly separate and distinct from the criminal aspect covering the charges of Plunder and/or of violation of Section 3 (e) of RA 3019 against them. Hence, the incidents related to it should have no effect on the filing of the latter.

2. Yes, there is probable cause against the petitioners should therefore stand trial for the crimes they were charged.

Probable Cause against Revilla.

The finding of probable cause against Sen. Revilla is amply supported by the evidence on record. At the forefront are the PDAF documents, consisting of the written endorsements signed by Sen. Revilla himself requesting the IAs to release his PDAF funds to the JLN-controlled NGOs, as well as other documents that made possible the processing of his PDAF, e.g., the MOAs executed by the legislator's office, the IA, and the chosen NGO. All these documents -even those not actually signed by Sen. Revilla -directly implicate him for the crimes charged, as they were nonetheless, all issued under the authority of his Office as Senator of the Republic of the Philippines. In Belgica v. Ochoa (Belgica), this Court observed that "the defining feature of all forms of Congressional Pork Barrel would be the authority of legislators to participate in the post-enactment phases of project implementation. At its core, legislators -may it be through project lists, prior consultations or program menus -have been consistently accorded post-enactment authority to identify the projects they desire to be funded through various Congressional Pork Barrel allocations." It is through this mechanism that individual legislators, such as Sen. Revilla, were able to practically dictate the entire expenditure of the PDAF allocated to their offices throughout the years.

Anent Sen. Revilla's claim that his signatures in the documentary evidence presented were forged, it must be emphasized that "the findings of the x x x prosecutor [on the issue of forgery) should be ventilated in a full-blown trial[.] [This] is highlighted by the reality that the authenticity of a questioned signature cannot be determined solely upon its general characteristics, or its similarities or dissimilarities with the genuine signature. The duty to determine the authenticity of a signature rests on the judge who must conduct an independent examination of the signature itself in order to arrive at a reasonable conclusion as to its authenticity. Accordingly, Sen. Revilla's evidence of forgery, including the findings of his purported handwriting experts, Rogelio G. Azores (Azores) and Forensic Document Examiner Atty. Desiderio A. Pagui, (Pagui) cannot be readily credited at this stage of the proceedings.

It is significant to emphasize that the Ombudsman had thoroughly passed upon the veracity of Sen. Revilla's signatures on the PDAF documents. As explicitly stated in the March 28, 2014 Joint Resolution: "[a]t all evei;its, the Special Panel members, after a prima facie comparison with their naked eyes of the questioned signatures appearing in the PDAF documents and the original signatures of [Sen.] Revilla and Cambe in their respective counter-affidavits, opine that both sets of signatures, which bear the same style and flourish, were written by one and the same hands. Findings of fact by the Office of the Ombudsman are conclusive when supported by substantial evidence, as in this case.

The testimonies of the whistleblowers -which the prosecution submitted before the Ombudsman -are, in fact, the most integral evidence against Sen. Revilla, since they provide a detailed account on the inner workings of the PDAF scam to which Sen. Revilla was directly involved. It should be pointed out that, of all the Senators, only the Offices ' of Sen. Revilla, Sen. Juan Ponce Enrile (Sen. Enrile ), and Sen. Jinggoy: Estrada (Sen. Estrada) were explicitly implicated to have dealt with in the plunder of their PDAF. Also, it is apparent that whistleblowers Suñas, Sula, and Luy had personal knowledge of the conspiracy since they were employees of JLN Corporation -the epicenter of the entire PDAF operation -and in their respective capacities, were individually tasked by to prepare the pertinent documents, liquidate the financial transactions, follow up the release of the NCAs with the DBM, and/or facilitate the withdrawal of PDAF funds deposited in the NGOs' accounts.

In any event, even if it is assumed that the rule on res inter alias acta were to apply during preliminary investigation, the treatment of the whistleblowers' statements as hearsay is bound by the exception on independently relevant statements. "Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. Undoubtedly, the testimonies of the whistleblowers are independently relevant to prove the involvement of Sen. Revilla and his co-accused in the present controversy, considering their respective participations in the entire PDAF scam.

Probable Cause against Cambe.

The same conclusion obtains with respect to the petition of Cambe in G.R. Nos. 212794-95 assailing the Ombudsman's finding of probable cause against him. is no dispute that Ca:mbe was Sen. Revilla's trusted aide, being his Chief of Staff. By such authority, he also exercised operational control over the affairs of Sen. Revilla's office, including the allocation of his PDAF. In fact, Cambe' s signatures explicitly appear on several PDAF documents, such as the MOAs allowing the IAs to transfer Sen. Revilla's PDAF funds allocated for certain projects to various JLN-controlled NGOs. Cambe was personally identified by the whistleblowers to have received PDAF money for himself and for Sen. Revilla.

In simple terms, Cambe allegedly acted as a liaison between Sen. Revilla and Napoles. For the same reasons above-discussed, there should be 'no valid objection against the appreciation of the PDAF documents and whistle blowers' testimonies as evidence to establish probable cause against Cambe at this stage of the proceedings. He also has no right to be furnished copies of the counter-affidavits .of his co-respondents.

Probable Cause against Napoles.

Records clearly show that Napoles, in all reasonable likelihood, played an integral role in the illegal utilization, diversion, and disbursement of Sen. Revilla's PDAF. In fact, she was tagged as the mastermind of the PDAF scam.

Based on the evidence in support thereof such as the PDAF documents, whistleblowers' testimonies, the accounts of the IA officials, and the COA report, as well as the field verifications of the FIO, Ombudsman, this Court is convinced that there lies probable cause against Janet Napoles for the charge of Plunder as it has been prima facie established that she, in conspiracy with Sen. Revilla, Cambe, and other personalities, was significantly involved in the afore-described modus operandi to obtain Sen. Revilla's PDAF amounting to at least P50,000,000.00 in "kickbacks." In the same manner, there is probable cause against Napoles for violations of Section 3 (e) of RA 3019, as it is ostensible that their conspiracy to,illegally divert PDAF Funds to "ghost" projects caused undue prejudice to the government. That a private individual, such as Napoles, could not be charged for Plunder and violations of Section 3 ( e) of RA 3019 because the offenders in those crimes are public officers is a complete misconception. It has been long-settled that while the primary offender in the aforesaid crimes are public officers, private individuals may also be held liable for the same if they are found to have conspired with said officers in committing the same. This proceeds from the fundamental principle that in cases of conspiracy the act of one is the act of all. In this case, since it appears that Napoles has acted in concert with public officers in the pillaging of Sen. Revilla's PDAF, the Ombudsman correctly indicted her as a co-conspirator for the aforementioned crimes.

WHEREFORE, the petitions are DISMISSED for lack of merit. The findings of probable cause against all petitioners are hereby AFFIRMED and the Sandiganbayan, as trial court, is DIRECTED to commence/continue with the necessary proceedings in these cases with deliberate dispatch.