REPUBLIC OF THE PHILIPPINES SANDIGANBAYAN ...sb.judiciary.gov.ph/RESOLUTIONS/2017/B_Crim_SB-16-CRM...14Caballero vs. Alfonso, Jr., 153 SCRA 153 (1987) , 15 Barcelona vs. Urn, 724 SCRA433

REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

PEOPLE OFPHILIPPINES,

Criminal Case No. SB-16-CRM-0264For: Violation of Section 3(e),Republic Act (R. A.) No. 3019

LEONIDES THERESA BORJAPLAZA, et ale CABOTAJE-TANG, P.J.,

ChairpersonFERNANDEZ, SJ, J. andTRESPESES,l J.

Promulgated:

~Y~I?Vl+6

1. Omnibus Motion to [(a)Dismiss the Instant Case; and(b) Cancel/Reset the Arraignment set on September 21, 2016Jdated September 15, 2016, filed by accused Salvador L.Satorre, Arthur C. Castro, Rodolfo B. Evanoso, Bebiano B.Calo and Melita Loida T. Galb~ I1Sitting as a special member per Administrative Order No. 227-2016 dated July 26, 20162 pp. 315-320, Record, Vol. II

ResolutionCriminal Case No. SB-16-CRM-0264People vs. Plaza, et. ai.

2. Urgent Omnibus Motion dated September 15, 2016,filed by accused Danilo C. Furia;3 and

3. Omnibus Motion (Motion to Quash Information andMotion to Dismiss) dated September 16, 2016, filed by accusedAdulfoA. Llagas.4

Invoking Coscolluela vs. Sandiganbayan5 and Tatad vs.Sandiganbayan,6 accused Satorre, et al. pray for the dismissalof the case against them on the ground of violation of theirright to speedy disposition of cases. They argue: 7

4. The unexplained delay of four (4) yearscovering the entire preliminary investigation, this is notto mention, the public disclosure of the purportedfertilizer scam in 2004, and the eventual filing of theInformation in 2016, totaling a period of five (5) years,with due respect, is anathema to the primordialfunctions of the Office of the Ombudsman, which foremphasis, mandated it to act promptly on complaintsfiled in whatever form or whatever manner againstpublic officers and/ or employees of the Government,any of its political subdivision, instrumentality oragency thereof and to be more active and effective agentof the people in ensuring accountability in public office.

Like accused Satorre, et al., accused Llagas prays for thedismissal of the case on the ground of violation of his right tospeedy disposition of cases. According to him, the delay of five(5) years from the time the complaint was filed with the Officeof the Ombudsman to the filing of the Information in Courtwas unreasonable and unwarranted. Accused Llagas alsomoves for the quashal of the Information against him claimi~

3 pp. 321-327, Record, Vol. II / /

4 pp. 349-355, Record, Vol. II -tY5701 SCRA 188 (2013) •••6159 SCRA70 (1988)'pp. 2-3, Omn;b" Motion; pp. 316-317, Reoo'd, Vol. 11 ~

ResolutionCriminal Case No. SB-16-CRM-0264People vs. Plaza, et. al.

that (1)he was not a signatory to the abstract of proposal thatled to the procurement of the questioned transaction; (2) hewas not among the officialsheld liable and accountable by theCommission on Audit [COAl in its notice of disallowanceinvolving the same transaction; (3)his signature appearing onthe purchase order [PO], disbursement vouchers [DVs] andchecks were done in the ordinary course of his duty; and (4)conspiracy was not alleged in the complaint-affidavit.8

In its consolidated comment/ opposition, the prosecutionargues that the entire process of preliminary investigation wasconducted within a reasonable period considering thevoluminous records and number of respondents involved; theneed to conduct a thorough evaluation and review of thecomplaint; and, the incidents that occurred during the intervalbetween April 11, 2011, when the Task Force Abono-FieldInvestigation Office filed its complaint and September 29,2015, when the Office of the Ombudsman issued its JointOrder resolving the motions for reconsideration filed by severalrespondents. Anent the issue of conspiracy, the prosecutioncontends that it was properly alleged in the Information. Itfurther argues that all other issues raised are evidentiary innature and are matters of defense.9

On the other hand, accused Furia prays for a judicialdetermination of probable cause. He argues that theResolution dated September 3, 2013 issued by the Office ofthe Ombudsman indicting him for violation of Section 3(e) ofR. A. No. 3019 is bereft of basis in fact and law. According tohim, the elements of (1) undue injury and (2) manifestpartiality, evident bad faith and/or gross inexcusablenegligence are wanting in this case. He claims that his being amember of the Bids and Awards Committee (BAC)and hissignature appearing on the abstract of proposal areinsufficient to demonstrate evident bad faith or manifestpartiality. Allegedly,it was not shown that he was motivatedby any fraudulent or dishonest purpose or that he /-J8 pp. 2-6, Omnibus Motion; pp. 350-354, Record, Vol. II9 pp. 2-7, Consolidated Comment/Opposition; pp. 461-466, Record, Vol. II


favoring Freshan Philippines, Inc. when he signed the abstractof proposal. He argues that the same Resolution of the Officeof the Ombudsman fails to show his intentional participationas a co-conspirator in the questioned transaction; hence, thereis no conspiracy. 10

The prosecution filed its comment/ opposition to accusedFuria's omnibus motion. According to the prosecution, thisCourt had already determined the existence of probable causefor the purpose of the issuance of a warrant of arrest of theaccused in its Resolution dated May 16, 2016. Thus, accusedFuria's motion for the determination of probable cause isalready moot. At any rate, the prosecution argues thatprobable cause exists against the accused as discussed in theResolution issued by the Office of the Ombudsman and thatthe issues he raised are matters of defense that should bethreshed out in a full-blown trial. 11

The Court finds subject motions devoid of merit.

The accused-movants raise the following issues: thealleged non-existence of probable cause, the alleged violationof the accused-movants' right to speedy disposition of cases,the absence of conspiracy, the absence of the elements ofSection 3(e) of R.A. No. 3019 and whether the mere act ofsigning the POs and DVs constitutes a violation of Section 3(e)of R.A.No. 3019.

To be sure, the said issues had been extensivelydiscussed by the Court in its Resolution promulgated onSeptember 21, 2016, which denied their co-accused LeonidesPlaza's motion to dismiss on the ground of violation of theright to speedy disposition of cases .and for judicialdetermination of probable cause. While the said resolutioninvolvedaccused Plaza only, the Court's findings are equr

10 pp. 2-5, Urgent Omnibus Motion; pp. 320-325, Record, Vol. II11 pp. 2-4, Comment/Opposition; pp. 455-457, Record, Vol. II


applicable to herein accused-movants considering that theyare all being charged under the same facts and circumstances.This Court held:12

First. The concept of speedy disposition isrelative or flexible. A mere mathematical reckoning ofthe time involvedis not sufficient.13 It is consistent withdelays and depends upon the circumstances. What theConstitution prohibits are unreasonable, arbitrary andoppressive delays which render rights nugatory.14Thus,the fact that it took the Office of the Ombudsmanalmost five (5)years to resolve accused Plaza's case andfile the corresponding Information does not, by itself,automatically establish that accused Plaza's right tospeedy disposition of cases had been violated.

In the determination ofwhether or not the right toa "speedy trial" has been violated, certain factors may beconsidered and balanced against each other. These arelength of delay, reason for the delay, assertion of theright or failure to assert it, and prejudice caused by thedelay.IS

These cases are part of the P728 million fertilizerscam where the Task Force Abono, Field InvestigationOffice (TFA-FIO)initially conducted an investigation offifteen (15) respondents. As pointed out by theprosecution, the voluminous documents, the number ofaccused involvedand the several levels of review, shouldbe considered in resolving the complaint. Theprosecution further enumerates the followingchronology of incidents to allegedly "dispel theimpression of delay" in the resolution of these cases:

i. On 11 April 2011, the Task Force Abono,Field Investigation Office,Officeof the Ombudsman, as

______ th_e_n_o_m_in_a_lcomplainant hereto filed a COmPlaint~

12 pp. 4-12, Resolution promulgated on September 21,2016; pp. 402-410, Record, Vol. II13 Braza vs. Sandiganabayan, 691 SCRA471 (2013)14 Caballero vs. Alfonso, Jr., 153 SCRA 153 (1987) ,15 Barcelona vs. Urn, 724 SCRA433 (2014), citing Caballero vs. Alfonso, Jr., supra


must be noted that said complaint includes severalannexes and several respondents, namely:

11. On 5 August 2011, after evaluation of thecomplaint and finding enough basis to proceed withthe preliminary investigation, the respondents wererequired to file their respective counter-affidavits.

111. On 2 and 16 September 2011, accusedPlaza filed a Motion for Extension of Time to FileCounter-Affidavit. It is worth (sic) to emphasize thatthe other respondents also filed their respectiveMotions for Extension of Time to File Counter-Affidavits.

iv. On 10 October 2011, accused Plaza filedher counter-affidavit. The other respondents also filedtheir respective counter-affidavits sometime in 2011.

v. On 26 June 2015, the Office of theOmbudsman issued a Resolution dated September 3,2013, finding probable cause to indict herein accusedPlaza together with the other accused for violation ofSection 3(e) in relation to Section 3(g) of Republic ActNo. 3019 otherwise known as the Anti-Graft andCorrupt Practices Act.

vi. On 8 October 2015, accused Plaza filed aMotion for Reconsideration of the 3 September 2013Ombudsman Resolution.

vii. On 11 March 2016, the Ombudsmanissued an Order denying accused Plaza'a motion forreconsideration. Subsequently, infonnations were filedon 2 May2016, before the Sandiganbayan.

Considering the above cited reasons and thechronology of incidents, the Court finds that there wasno unreasonable or oppressive delay to speak of in theconduct of the preliminary investigation. The delay wasreasonable being part of the ordinary process of justice.

Further, in factoring prejudice caused by the delayin the determination of violation of the right to speedydisposition of cases, prejudice should be assessed in thelight of the interest of the defendant that the speedytrial was designed to protect, namely: to pre~

-rr ;.


oppressive pre-trial incarceration; to minimize anxietyand concerns of the accused to trial; and to limit thepossibility that his defense will'be impaired. Of these,the most serious is the last, because the inability of adefendant adequately to prepare his case skews thefairness of the entire system. There is also prejudice ifthe defense witnesses are unable to recall accurately theevents of the distant past. Even if the accused is notimprisoned prior to trial, he is still disadvantaged byrestraints on his liberty and by living under a cloud ofanxiety, suspicion and often, hostility. His financialresources may be drained, his association is curtailed,and he is subjected to public obloquy.16

Here, accused Plaza failed to establish any seriousprejudice which she suffered because of the "delay" inthe resolution of her cases.

Finally, accused Plaza's reliance on the Tatad caseis misplaced. In Tatad, the Supreme Court ruled thatthe delay of almost three (3) years in the conduct ofpreliminary investigation was tantamount to a violationof the accused's rights to due process and to a speedydisposition of his cases. In arriving at said declaration,the Supreme Court considered the following peculiarcircumstance: "political motivations played a vital rolein activating and propelling the prosecutorial process;"there was a departure from the established procedure inconducting the preliminary investigation and the issuesinvolvedwere simple.

To be sure, the aforementioned circumstances inTatad justifying the dismissal of the case against Tatadare not attendant to these cases.

Second. The task of the presiding judge whenthe Information is filed with the court is first andforemostto;determinethe existenceor non-existen/?

16 Caballes vs. Court of Appeals, 452 SeRA 312 (2005), citing Corpuz, et.al. vs. Sandiganbayan, 442294(2004) ~


probable cause for the arrest of the accused.17 Sincethe judge is already duty-bound to determine theexistence or non-existence of probable cause for thearrest of the accused immediately upon the filing of theinformation, the filing of a motion for judicialdetermination of probable cause becomes a meresuperfluity, if not a deliberate attempt to cut short theprocess by asking the judge to weigh in on the evidencewithout a full-blown trial. 18

To be sure, in its Resolution dated May 16, 2016,the Court found that probable cause exists in thesecases against all the accused; hence, it issued warrantsof arrest against them.19 Thereby, the issue of theexistence of probable cause is now academic ascorrectly pointed out by the prosecution.

At any rate, after a careful re-assessment of therecords of these cases, the Court maintains itsfinding that probable cause exists to justify theissuance of warrant of arrest against accused Plaza,along with the other accused.

Probable cause in judicial proceedings for theissuance of a warrant of arrest is defined as theexistence of such facts and circumstances that wouldlead a reasonably discreet and prudent person to believethat an offense has been committed by the personsought to be arrested. Hence, before issuing a warrantof arrest, the judge must be satisfied that based on theevidence submitted, there is sufficient proof that a crimehas been committed and that the person to be arrestedis probably guilty thereof. At this stage of the criminalproceeding, the judge is not yet tasked to review indetail the evidence submitted during the preliminaryinvestigation. It is sufficient that he personally evaluatesthe evidence in determining probable cause to issue awarrant of arrest.~

~;.17Leviste vs. Alameda, 626 SeRA 574 (2010)18Celos Santos-Cio vs. Court of Appeals, 699 SeRA 614 (2013)19p. 441, Record, Vol. 120 Pestilos vs. Generoso, G.R. No. 182601, November 10, 2014


In this case, the Court finds anew that there issubstantial basis to support the finding of probablecause for the purpose of issuing a warrant of arrestagainst the accused as shown by the followingdocuments/circumstances noted by the Office of theOmbudsman:

1. Feshan President Julie Gregorio's letter containing thequotation for Bio Nature Liquid Organic Fertilizerdated January 6,2004 was sent to Butuan way aheadof Special Allotment Release Order (SARO)No. E-04-0164 released on February 3, 2004 and the MOAbetween DA-RFUXIIIand Butuan on April 12, 2004;

2. On April 22, 2004, several incidents happened at thesame time: (a) The Notices of Canvass were sent toselected suppliers: (b)Suppliers sent back their replieson the Notice of Canvass; (c)PO No. 714 was issued toFeshan; (d) DV No. 253 was released; (e) Check Nos.0000611781 and 0000611782 were issued to Feshanas partial payment for the fertilizer;

3. On the same day, or on April 22, 2004, Feshanreceived and replied to the Canvass Proposal sent byBAC. Feshan office is located in Manila, and has nobranch in Butuan;

4. Bio Nature Liquid Organic Fertilizer was delivered toButuan on April 20, 2004, before the purportedcanvass of prices on April 22, 2004 and before thecopy of the canvass of prices was received by the CityMayor on April 26, 2004;

5. Bio Nature Liquid Organic Fertilizer was delivered toButuan on April 20, 2004 before the issuance of PONo. 714 to Feshan on April 22,2004;

6. In DV No. 253, the date was changed from 21 April2004 to 22 April 200~


7. Disbursement Voucher (DV) No. 356 bore two (2)dates, a typewritten" 13 May 2004" and a handwritten"31 May 2004;"

8. PR No. 1430 specified the brand name Bio NatureLiquid Organic Fertilizer, a product exclusivelydistributed by Feshan in violation of Section 18 of R.A.No. 9184 prohibiting reference to brand names;

9. Invitation to Bid Contract was not advertised byButuan;

10. The very detailed specifications as to the micro-nutrient content of the fertilizer to be procured in PR1430, is different from those specified in PO No. 714which states that Bio Nature Liquid Organic Fertilizercontains only three elements; and

11. In the canvas of prices conducted by DA-RFUXIII, itappears that there are two (2) other brands availablein the locality; Restorer Liquid Organic and Megayield,the prices of which are cheaper priced at Php120.00and Php125.00, respectively, and contain higherpercentage of nutrients than Feshan's Bio Nature.An over pricing could thus be estimated at the amountof Php4,582,875.00 computed as follows:

3,333 bottles x Php1,500 (BioNature)=Php4,999,500

3,333 bottles x Php125.00 (Megayield)=416,625

Overpricing =Php4,582,875

The above circumstances show that accused Plazais probably guilty of (1) causing undue injury to thegovernment and giving unwarranted benefit to FeshanPhilippines, Inc. and (2) entering into a contract withFeshan which is manifestly and grosslydisadvantageous to the City government of Butuanwhen she approved the purchase of liquid fertilizerwithout public bidding which resulted in the overpriceof more than four million pesos. Accused Plaza's~

•.-tJY /)'"


indicate probable manifest partiality, evident bad faithand/ or gross inexcusable negligence.

Accused Plaza, however, insists that there is noevidence that she conspired with her co-accused; thather act of signing the PR, PO, abstract of canvass andDVdoes not amount to "manifest partiality, evident badfaith or gross inexcusable negligence" because she didnot participate in the canvass and selection process;and that element of "undue injury" is not present in thiscase because her acts of requesting the release of fundsfrom the DA and executing the MOAare not illegal orirregular. Citing Arias vs. Sandiganbayan,21 she arguesthat granting that she participated in the approval ofthe procurement, she acted in good faith when sherelied on the findings of her subordinates; hence, shecould not be held liable for violation of Section 3(g) ofR. A. No. 3019.

Accused Plaza's claims are matters of defense andare evidentiary in nature. It is best left for the court toresolve after a full-blown trial on the merits.

Indeed, the validity and merits of a party's defenseand accusation, as well as admissibility of testimoniesand evidence, are better ventilated during trial properthan at the preliminary investigation level. A finding ofprobable cause does not ensure a conviction or aconclusive finding of guilt beyond reasonable doubt. Theallegations adduced by the prosecution will be put totest in a full-blown trial in which evidence shall beanalyzed, weighed, given credence or disproved.22

In this case, the Court notes that accused Plazasigned the PR on April 14, 2004 and the PO on April 22,2004 relative to the procurement of the organicfertilizer. Both documents indicate the brand name: BioNature. The PO contains specification of the productdifferent from that in the PRo Further, the alleged copyof the canvass of prices was received by the officey?

21 supra note 3 /22 Ricaforte vs. Jurado, 532 SeRA 317 (2007)


accused Plaza only on April 26, 2004, or after shealready signed the PO. These circumstances shouldhave prodded accused Plaza to go beyond what wasprepared by her subordinates; hence, she cannottenably rely on the Arias doctrine.

At any rate, accused Plaza's claim that her act ofsigning the PO and approving the canvass cannot beconstrued as an act of conspiring with the otheraccused is a matter of defense. The truth of these canbe best passed upon after a full-blown trial. In Nava vs.Commission on Audit,23 the Supreme Court declared:

Petitioner's argument that he could not beindicted for violation of Section 3(g) of RA3019,because he acted in good faith when heapproved the disbursement voucher, purchaseorder, invitation to bid and signed the checksafter the same had been processed by hissubordinates, are evidentiary in nature and arematters of defense, the truth of which can bebest passed upon after a full-blown trial on themerits. A preliminary investigation is conductedfor the purpose of determining whether a crimehas been committed, and whether there isprobable cause to believe that the accused isguilty thereof and should be held for trial. It isnot the occasion for full and exhaustive displayof the parties' evidence; it is for the presentationof such evidence only as may engender a well-grounded belief that an offense has beencommitted and that the accused is probablyguilty thereof.

Anent accused Satorre, et al.'s reliance on theCoscolluela case24 in support of their argument that therewas a violation of their right to speedy disposition of cases,suffice it t~ state that the attendant circumstances in~

23419 SCRA 544 (2001), cited in Redulla vs. Sandiganbayan, 517 SCRA110 (2007)

" ,upm oote 5 --or _y'


Coscolluela case are not present in this case. Thus, the rulingtherein does not apply here.

The Supreme Court teaches that the concept of speedydisposition is relative or flexible. A mere mathematicalreckoning of the time involved is not sufficient. Particularregard must be taken of the facts and circumstancespeculiar to each case. For this reason, a balancing test ofapplying societal interests and the rights of the accusednecessarily compels the court to approach speedy trial casespn an ad hoc basis. 25

As can be gleaned from the record of this case, there werefifteen (15) respondents initially and there are voluminousdocuments. Moreover, the prosecution enumerates the"chronology of incidents that ensued prior to and from thedate the initiatory pleading was filed" "to dispel the impressionof delay:"26

i. On 11 April 2011, the Task Force Abono,Field Investigation Office,Officeof the Ombudsman, asthe nominal complainant hereto filed a complaint. Itmust be noted that said complaint includes severalannexes and several respondents, namely:

ii. On 5 August 2011, after evaluation of thecomplaint and finding enough basis to proceed with thepreliminary investigation, the respondents wererequired to file their respective counter-affidavits.

111. On 31 August 2011, accused Satorre,Castro, Evanoso, Calo and Galbo filed a Motion forExtension of Time to File Counter-Affidavit. AccusedLlagas filed a similar motion on 2 September 2011. Itis worth (sic) to emphasize that the other respondentsalso filed their respective Motions for Extension of Timeto File counter-Affidavit/7

25 Alameda vs. Office of the Ombudsman (Mindanao), . . o. 04267, Jk, :016; emphasis supplied26 at pp. 3-5, Consolidated Comment/Opposition; pp. 462-464, ecord, Vol. II


iv. In September 2011, accused Satorre,Castro, Evanoso, Calo and Galbo filed their respectivecounter-affidavits, while accused Llagas filed hiscounter-affidavit on 12 September 2011. The otherrespondents also filed their respective counter-affidavitssometime in 2011.

v. The Office of the Ombudsman issued aResolution dated 3 September 2013, finding probablecause to indict herein accused-movants together withthe other accused for violation of Section 3(e) in relationto Section 3(g) of Republic Act No. 3019 otherwiseknown as the Anti-Graft and Corrupt Practices Act.

vi. In September 2015, accused-movants filedtheir respective Motion for Reconsideration of the 3September 2013 Ombudsman Resolution.

vii. On 29 September 2015, the Ombudsmanissued a Joint Order denying accused-movants' motionfor reconsideration. Subsequently, an Information wasfiled on 2 May 2016, before the Sandiganbayan.27

J J: The ~bove circumstances show that the proceedingsbefore the Office of the Ombudsman was not attended by anyvexatious, capricious, and oppressive delays. If some measureof delay was entailed, it is attributable to the ordinaryprocesses of justice, i.e. the case was studied if there is basisto proceed with the preliminary investigation, accused-movants were given time to file their counter-affidavit and thecase was thoroughly studied. After the finding of probablecause, accused-movants filed a motion for reconsiderationwhich required another study by the prosecution.

Clearly, accused-movants cannot claim a violation oftheir right to speedy disposition of cases. Also, the Courtreiterates its earlier finding that probable cause exists for theissuance of warrant of arrest against accused-movants, alongwith the other accus~

"emph";sthe;" ~ .; •


WHEREFORE, the Court DENIES the (1) OmnibusMotion to [(a) Dismiss the Instant Case; and (b) Cancel! Resetthe Arraignment set on September 21) 2016J dated September15, 2016, filed by accused Salvador L. Satorre, Arthur C.Castro, Rodolfo B. Evanoso, Bebiano B. Calo and Melita LoidaT. Galbo; (2) Urgent Omnibus Motion dated September 15,2016, filed by accused Danilo C. Furia; and (3) OmnibusMotion (Motion to Quash Information and Motion to Dismiss)dated September 16, 2016, filed by accused Adulfo A. Llagasfor lack of merit.

SO ORDERED.Quezon City, Metro Manila

PARO TAJE-TAPresiding Justice

Chairperson

SPESESe Justice

Documents

REPUBLIC OF THE PHILIPPINES SANDIGANBAYAN ...sb.judiciary.gov.ph/RESOLUTIONS/2017/B_Crim_SB-16-CRM...14Caballero vs. Alfonso, Jr., 153 SCRA 153 (1987) , 15 Barcelona vs. Urn, 724 SCRA433