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  • I Crim SB-06-CRM-0381-0382 People Vs Belicena, Et Al 09-17-2019

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    People vs. Belicena

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    I Crim SB-06-CRM-0381-0382 People vs Belicena, Et Al 09-17-2019

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    People vs. Belicena

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    31 Ansichten7 Seiten

    I Crim SB-06-CRM-0381-0382 People Vs Belicena, Et Al 09-17-2019

    Hochgeladen von

    Sudo Nim
    People vs. Belicena

    Copyright:

    © All Rights Reserved
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    Markieren Sie unangemessene Inhalte
    von 7
    Republic of the Philippines SANDIGANBAYAN Quezon City Second People of the Philippines, Plaintiff, Crim. Cases Nos. SB-06-CRM-0381-0382 -versus- Present: Herrera, J., Chairperson Musngi, J Pahimna, J. Antonio P. Belicena, et. al., Promulgated Accused, hoa ember 17, 2014 x RESOLUTION HERRERA, JR., J.: Before the Court is an OMNIBUS MOTION ' dated May 22, 2019 filed by the plaintiff, through the Office of the Special Prosecutor, Office of the Ombudsman, which includes the following: 1. Motion to Admit the Attached Sworn Affidavit of Accused Orlando P. Cachuela attested on April 25, 2019 in Davao City; ny Supplement to the Motion to Discharge Accused Orlando P. Cachuela to be Utilized as State Witness; and . oe Motion to Mark Additional Documents in Support of the Supplement to the Motion to Discharge. On June 7, 2019, accused Raul C. de Vera, through counsel, filed his COMMENT/OPPOSITION (to Omnibus Motion dated 22 May 2019). * The other accused did not submit any comment/opposition to the Omnibus Motion {[Record, Volume 4, pp. 1828-1850 "6, pp. 1864-1875, RESOLUTION Pooplev. Belcana, et a, ‘Grim. Case Nos. $8-06-CRM.0381-0382 Pago 20f7 The accused in these cases are Orlando P. Cachuela, the President of Land Car, Inc. (LCI); Arturo S. Susmiran; and former Department of Finance (DOF) officials assigned at its One-Stop- Shop Inter-Agency Tax Credit and Drawback Center (DOF OSS), namely: Antonio P. Belicena; Uldarico P. Andutan, Jr.; Raul C. De Vera; and Brandy L. Marzan. The cases arose from the issuance of Tax Credit Certificate 09654 (TCC 09654) in favor of LCI, which was investigated and found fraudulent by the Special Presidential Task Force 156, created pursuant to Executive Order No. 156 by then President Joseph Estrada On February 12, 2016, the prosecution filed a Motion To Discharge Accused Orlando P. Cachuela To Be Utilized As State Witness.* In support of the motion, the prosecution submitted as evidence the following documents: Affidavit* of Cachuela; Judicial Affidavit of Cachuela; Claimant Information Sheet of Land Car, Incorporated signed by Arturo S. Susmiran as President;® Statement of Account with Balance Collectible as of August 1, 1998 in the amount of P286,135.20, noted by Arturo S Susmiran;” Statement of Account with Balance Collectible as of July 8, 1998 in the amount of P336,135.20, noted by Arturo S. Susmiran;® and a Letter addressed to Arturo S. Susmiran by Antonio P. Belicena as Undersecretary, informing him of the release of TCC No. 009654 amounting to P5,501,901.00 issued to his firm. Hearings for presentation of prosecution evidence in support of the motion were held on November 23, 2016, August 15, 2017, and January 8, 2018. The summary of the testimony of accused Cachuela is basically a narration of the statement in his affidavit and judicial affidavit, to wit: ORLANDO PACIENTE CACHUELA testified that he is the President of Land Car, Inc. (LCI) and is one of the accused in Criminal Case Nos. 0381-0382. He volunteered to testify as a state witness as he himself is a victim in this grand scheme of tax credit. According to him, the only mistake he made was to allow himself, as President of LCI, to apply for tax credit believing that the same was legal as put forward by his co-accused Arturo Susmiran, Brandy Marzan, and Raul de Vera. Susmiran was LCI’s consultant, external accountant and bookkeeper. He acted as the company's agent at the DOF One Stop Shop Inter-Agency and Duty-Drawback Center for purposes of tax credit application It be noted that Susmiran died sometime in 2008 as per testimony of Cachuela. ha, pp. 1430-1436 “a, Ii. p 1486 “Id, p. 1457 RESOLUTION People v. Belcene, ot a ‘Grim. Case Nos. $8-06-CRM-0981-0382 Page Jof7 In 1997, Susmiran proposed to Cachuela on several instances the possibility of securing tax credit through the program of the DOF and that the same is a legitimate government program and everything will be legal and in order. According to Susmiran, he can easily avail of the TCC through the help of his “friends’ from the DOF as they will be the one to handle LCI's application. However, a certain amount will be involved for the processing and release of the TCC, from the total amount of the tax credit, 35% will be deducted — 15% will be his hare and 20% will be for his ‘friends’ at the DOF who will process the application. All he had to do was to agree on Susmiran’s proposal, sign the application for TCC, authorize him to be LCI’s agent or contact person, and entrust to him the original sales invoices, delivery receipts and other documents relative to the purchase of the new buses from Commercial Motors Corporation (CMC). When he found out that other bus operators also availed the tax credit program and after he was convinced of the viability of the program, he decided to agree with the proposal of Susmiran, that for 35% share, Susmiran will be the one to transact and facilitate the application for tax credit The agreement was made orally but Cachuela presented Statement of Accounts dated July 8, 1998 and August 1, 1998 showing the billing statement that he sent LCI his professional assistance on the application for tax credit. Also, as indicated in the Claimant Information Sheet, Susmiran is the contact person of LCI and he is the one being notified by USec Antonio Belicena as regards the release of TCC No. 009654 issued to LCI as also shown in the letter dated May 13, 1998 of USec Belicena. As agreed upon, Cachuela turned over to Susmiran all the original documents such as the sales invoices covering the 12 bus units, the corresponding delivery receipts and other documents relative to the purchase of said bus units from CMC. Thereafter, Susmiran gave him the application form for the TCC and instructed him to sign as the applicant. As part of Susmiran’s share and initial payment for his services, he gave him a brand new Proton Wira car. According to him, he was a bit nervous but dealing with the DOF officials somehow comforted him. Susmiran will process the application and Cachuela will have to wait for the result in a period of no less than six (8) months as the LCI's application for tax credit passes through his “friends” at the Center for evaluation and approval, Moreover, Susmiran kept on assuring him that they were dealing with the right people at the Center so there's nothing to worry about. The result was Tax Credit Certificate No. 009654 amounting to P5,501,901.00. However, he was able to meet only Marzan and de Vera about four times: first, in December 1997 at Century Sheraton Hotel where he was introduced to them by Susmiran; second, sometime in February 1998 for further clarification of matters that have been discussed; third, when there was a letter from Antonio Belicena that the application was granted and approved; and the fourth time, the release of the TCC. Marzan was introduced to him as the “action man” while de Vera as the one who is “pinaka- magaling’. When he inquired about the details of the procedure, ee 5 RESOLUTION People v. Belcene, et al, Crim. Case Nos. SE-06-CRM-0361-0362 Page 407 he was assured by them saying, “wag kayong mag-alala, wala namang perpektong programa ang gobyero.” During the meetings, he noticed that Marzan and de Vera appeared to be evasive and always on the rush. The meetings would only last for about 10 to 15 minutes. For assurance, as soon as the amount of tax credit due to LCI is evaluated and processed by Marzan and de Vera, he would know the amount of the TCC to be granted. Susmiran will get his 15% share as “mobilization professional fee". Susmiran will secure a photocopy of the approved TCC as proof that LCI's application for TCC was granted with the corresponding amount as indicated on the face of the TCC. As soon as the photocopy of the TCC is shown to him, this would serve as notice to him to prepare the 20% for the DOF Center officials, Marzan, de Vera, Andutan, and Belicena, as the TCC will pass through them either for evaluation, review, approval, and signature. He doesn't know though the share of each DOF Center officials. The remaining balance will be given after the release of the original TCC. However, there were no receipts or acknowledgment signed for value received from him as the DOF Center officials preferred to receive the cash in “supot' or small brown paper bag. The exchange happened in his presence at Century Park Sheraton Hotel - Susmiran handed them the “supof’ containing the money in exchange of the original TCC. Further, on some occasion, the 20% share of the DOF Center officials will just be picked up at the parking lot of the hotel and “kindatan lang’ and the delivery man who is carrying the original TCC would just pick up the “supof’ containing the money from Susmiran ~ “dinadaanan lang’ and he will hand over the original TCC to Susmiran Afterwards, Susmiran prepared all the documents needed for the transfer and utilization of the subject TCC and Cachuela just affixed his signature to the letter-request and other transfer documents required by the Center. He clarified that he did not submit spurious documents regarding his application of TCC No. 009654 as he gave Susmiran the original sales invoice and delivery receipts relative to the purchase of the twelve (12) bus units. He only discovered that the prices of the bus units were grossly over-priced and that there were other details in said invoices, which he found inconsistent under normal transactions, When he asked Marzan and de Vera for explanation, he was told instead to not to worry. Susmiran explained to him that the ‘overpriced amount per bus unit would be shared to his “friends” at the DOF. Finally, he maintained that he did not connive with ‘Susmiran with regard to the submission of falsified sales invoices and delivery receipts, LTO certificate or registration and accompanying official receipts, which were used in the processing of the application of LCI and resulting to the issuance of TCC 009654. In a Resolution’? dated December 6, 2018, the Court held in abeyance the resolution of the motion until after the prosecution has presented all its other evidence. The Court pointed out that M pp. 1767-1776 RESOLUTION People v. Belcena, el (Crim. Case Nos. $8-06-CRM-0381-0382 Page 5017 “the prosecution has not explained why there is absolute necessity for the testimony of accused Cachuela and why there is no other direct evidence available except for his testimony.” Further, ‘the Affidavit of accused Cachuela is not under oath and appears to be insufficient with respect to material details.” On April 30, 2019, the prosecution manifested that it has no more witness to present.'' The prosecution, thereafter, filed the instant Omnibus Motion that included the motion to admit the ‘Sworn Affidavit of Cachuela dated April 25, 2019 and the marking of the following additional documents as evidence: 1) Orlando P. Cachuela’s Affidavit sworn before a notary public on 25 April 2019 in Davao City, Philippines, to be marked as Exhibit “HH-1"; 2) Orlando P. Cachuela’s Letter dated 1 October 2015 to then Ombudsman Conchita Carpio-Morales to be marked as Exhibit “LL”, 3) Acknowledgment Receipt of the twenty-five (25) checks of Orlando P. Cachuela by the Case Records Section of the Office of the Ombudsman dated 5 October 2015, to be marked as Exhibit “LL1", and 4) Certification signed by Julie S. Lonjawon, Administrative Officer V, and Fiona M. Sto. Tomas, Officer-in- Charge of the Office of the Ombudsman-Finance and Management Information Office (FMIO) dated 8 May 2019, to be marked as Exhibit *LL-2”. Records show that apart from the declaration of accused Cachuela, the following witnesses testified for the prosecution, namely: Beverly Taneza-Basman; David P. Golla; Eliezer Managbanag; Timothy Ceasar Tan Lee; and Atty. Alma G. Cagat- Cagat. After a careful study, the Court rules that the plea for the discharge of accused Cachuela to become a state witness must necessarily be denied As stated in the Resolution dated December 6, 2018, for one of several accused jointly charged with an offense to qualify as a state witness, the following requisites must be met: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; () Said accused does not appear to be the most guilty; and, " See Ondor dated Apri 30, 2019, \\ ‘. RESOLUTION Poopio v. Bolicena, ot at (Gam, Case Nos. $8-06-CRM.0981-0382 Page 6017 (e) Said accused has not at any time been convicted of any offense involving moral turpitude. The Court rules that the prosecution failed to establish requisites (a) and (c) above for accused Cachuela to qualify as a state witness against his co-accused. To begin with, the narrations in Sworn Affidavit * of Cachuela attested on April 25, 2019 in Davao City are essentially the same as those contained in his so-called Affidavit submitted earlier, except that it is now under oath. The instances when Cachuela and Susmiran met with De Vera and Marzan, and made dealings with them, lack material details. As such, there is no necessity for his testimony as it could not prove that there were meetings held with Cachuela's co- accused and there were exchanges of money as consideration for the processing of the application for tax credit certificate. The billing statements sent to him by Susmiran do not prove anything but as payment for the latter's professional fee as his agent on the application for tax credit certification Also, while prosecution evidence indicates an anomaly in the issuance of the subject tax credit certificate, the version of events of Cachuela in his sworn statement and in testimonies given cannot be corroborated in its material points by the documentary evidence submitted during the hearing. The Claimant Information Sheet of Land Car, Incorporated signed by Arturo S. Susmiran as President: the Statement of Account with Balance Collectible as of August 1, 1998 in the amount of P286,135.20 and the Statement of Account with Balance Collectible as of July 8, 1998 in the amount of 336,135.20, both noted by Arturo S. Susmiran; and the Letter addressed to Arturo S. Susmiran by Antonio P. Belicena as Undersecretary, informing him of the release of TCC No. 009654 amounting to P5,501,901.00 issued to his fim, were short in establishing the circumstances that led to the preparation and issuance of fraudulent Tax Credit Certificate No. 009654 and the direct involvement of his co-accused In sum, the testimony of Cachuela could not fill in the gaps in the evidence and provide a detailed picture of the fraudulent scheme that went into the approval and issuance of the tax credit certificate. There is no evidence that could corroborate the testimony of accused Cachuela pointing to the involvement of his co-accused, Marzan, De Vera, Andutan, and Belicena As regards the Motion to Mark Additional Documents in Support of the Supplement to the Motion to Discharge, the rule provides that evidence in support of the motion to discharge ® Record, Volume 4 pp. 1843-1845, We RESOLUTION People v. Bolcena, eta. Crim. Case Nos. SB-06-CRM.038 1.0382 Pago Tot together with the sworn statement should be presented at the hearing of the motion. It is a hearing separate from the trial itself, where the prosecution presents its evidence and sworn statement of the proposed witness proving the existence of the conditions for discharge. The Court is constrained to deny the motion to mark additional documents, as the marking should have been presented during the hearing in support of the discharge to afford the accused an opportunity to be confronted with the evidence. WHEREFORE, premises considered, the Court resolves as follows: (1) To hereby deny the Motion To Discharge Accused Orlando P. Cachuela To Be Utilized As State Witness dated February 11, 2016, filed by the prosecution; and (2) To hereby deny the Omnibus Motion dated May 22, 2019, also filed by the prosecution, which includes the Motion to Admit the Attached Sworn Affidavit of Accused Orlando P. Cachuela attested on April 25, 2019 in Davao City; the Supplement to the Motion to Discharge Accused Orlando P. Cachuela to be Utilized as State Witness; and the Motion to Mark Additional Documents in Support of the Supplement to the Motion to Discharge. SO ORDERED. Associate Justice We concur. ‘AP PAHIMNA L, MUSNGI LORIFEL L

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