People vs. Delfin Lee et al for syndicated estafa, pretrial: Will signatures of ex-PAGIBIG officials be also marked as prosecution evidence? #DelfinLee Guide for Reporters
Syndicated estafa accused Delfin Lee’s arraignment was reset to Friday. Upon arraignment, the pre-trial would be set or, if the parties are ready, would be held right after the arraignment.
Pre-trial includes marking of documents. The documents include the PAGIBIG loan documents, deeds of sale, contracts to sell, mortgage documents, etc.
Ideally, ALL the signatures on the pertinent documents should also be marked – called “sub-markings”. When a signature is marked, there is an intent to present them as evidence.
So… Here’s what to watch out for in the pre-trial:
Will the prosecution also mark in evidence the signatures of the former PAGIBIG officials who approved the loans, amounting to a total of 6 billion pesos?
Because if these signatures are marked in evidence, it will draw attention to the fact that PAGIBIG and PAGIBIG members, were defrauded, to the tune of about 6 billion pesos, with the help of said former PAGIBIG officials.
(I don’t know whose signatures from PAGIBIG appear in those documents. The former PAGIBIG CEOs, from most recent to oldest, are : Jaime Fabiaña, Miro Quimbo, Noli de Castro.)
If they are marked as prosecution evidence, will those former PAGIBIG officials be impleaded (as respondents in a preliminary investigation and as accused later on)?
If the prosecution does not mark them in evidence … one would wonder why.
If the lawyers of Delfin Lee are smart, they would notice if the signatures of the former PAGIBIG officials are not marked in evidence. If they have a theory of this case, they would sub-mark those signatures. But they’ll have to stipulate on those documents – and hopefully, those become common exhibits, thereby facilitating trial.
Those who are just beginning to cover this case should probably read this column piece from Prof. Randy David:
“The picture of Delfin Lee” By Randy David Philippine Daily Inquirer First Posted 00:11:00 10/31/2010 “Public Lives”
“IN A column I wrote in July this year (Inquirer, 07/17/10), I tried to interpret an intriguing photo that appeared in the Inquirer showing Globe Asiatique’s Delfin Lee with top officials of Pag-Ibig (Home Development Mutual Fund). The photo carried the following caption: “Globe Asiatique and Pag-Ibig Committed to Working Together.” If this was a news item, I said, what was it doing in the foreign section? If it was a paid advertisement, why was it not labeled as such? The main point of that article was to argue why it is important to mark the boundaries separating the news from advertisement and entertainment.
“But, what initially drew me to the picture in question had little to do with the point I was making. There was just something curious and disturbing about the photo itself: A smiling man dressed casually (Delfin Lee) had his right hand on the shoulder of a formally dressed person (Jaime Fabiaña) in what appeared to be a formal pose. This man must be a celebrity, I thought to myself.
“Well, Lee might have felt like one because he used to host a television program on ANC in which he mainly promoted the projects of his real-estate company. Still, it seemed improper for anyone, especially one who has dealings with Pag-Ibig, to treat the chief executive officer of the agency as if they were buddies. To be fair, Fabiaña himself, like the other Pag-Ibig official in the photo, deputy CEO Emma Linda Faria, looked reluctant and uncomfortable in that picture.
“My instinct was instantly confirmed after I Googled Delfin Lee. One link led me to the website of Pag-Ibig Fund South Min, which featured more or less the same photograph minus the overreaching hand of Lee resting on Fabiaña?s shoulder. More interesting was the caption: “Apology to Pag-Ibig. Jaime A. Fabiaña (left), Chief Executive Officer of Home Development Mutual Fund (Pag-Ibig Fund), receives Delfin Lee (center), President of Globe Asiatique Realty Holdings Corporation at his office. Lee personally apologized to Fabiaña over his reported statements that HDMF officials have become lazy and have lost the vision to serve.”
(blog admin’s note: here’s that photo, right-clicked from the PAGIBIG South Min site, embedded below):
“Three months quickly passed since that picture saw print in the Inquirer. But one doesn’t have to be a journalist, I wrote in my column, to sense that there?s a bigger story buried here. What prompted the apology? What was the issue? What is the nature of Lee’s dealings with the Pag-Ibig Fund?
“As it turned out, one sharp-nosed journalist, the Inquirer’s own Tonette Orejas, correspondent for Central Luzon, had been quietly researching Lee’s projects in Pampanga long before that contested photograph appeared. Her carefully documented research resulted in a two-part report that the Inquirer published a month later. That report promptly triggered a Senate investigation of the activities of Globe Asiatique. Today, Globe Asiatique owner Delfin Lee and other officials of his company are facing charges of syndicated estafa. The complaint filed at the Department of Justice is signed by Pag-Ibig officer in charge Emma Linda Faria, the lady in that picture.
“Lee is accused of using fictitious buyers of housing units supplied by his company to take out loans from Pag-Ibig. The amount involved is P6.65 billion, representing payment for 8,790 units in the Xevera projects of Globe Asiatique. Of these, only 1,209 are actually occupied by buyers/borrowers on Pag-Ibig’s records. A total of 1,576 housing units that were supposed to have been bought by Pag-Ibig members/borrowers are actually being occupied by people who say they are tenants or in-house buyers of Globe Asiatique.
“The charges allege that Delfin Lee, in effect, fraudulently accessed the funds belonging to Pag-Ibig members to finance his own real-estate projects. This scam is so reminiscent of the misuse of public funds that doomed the well-intentioned Unified Home Lending Program during the Ramos administration that it is difficult to believe that people at Pag-Ibig and the Housing and Urban Development Coordinating Council (HUDCC) could not have smelled this rip-off earlier.
“Every legitimate Pag-Ibig member knows how tortuous and protracted the process of securing a housing loan can be. Yet, individuals sponsored by Globe Asiatique, who became instant Pag-Ibig members upon paying P5,000, the equivalent of two years’ contributions, could get their loan applications processed and approved in less than a week. For a given period, month after month, a big bulk of the agency
s available housing credit was taken out by the same company. If no one in Pag-Ibig or the HUDCC felt any alarm over this, the only logical conclusion one can draw is that the officials of these government agencies were incompetent, in collusion with the private developer, or were intimidated by a powerful official.
“As a long-time member of the Pag-Ibig Fund, I feel violated. This matter cannot end with the filing of charges against Globe Asiatique and one low-ranking employee at Pag-Ibig. Delfin Lee could not have gotten this far without the backing of someone who uses political muscle to soften the stiffest resistance from professionals in government. The man in that photograph who carried himself as if he owned Pag-Ibig definitely had a protector who was clever enough not to be in that picture.”
Delfin Lee’s lawyers will file a petition for the issuance of a writ of habeas corpus – if they haven’t done that yet, it’s already 5:33pm Friday. The lawyers are probably looking for his next-of-kin to sign it. If they know their way around the courts or know some judges or justices or clerks of court, they can file it tonight or tomorrow, or at the latest, manually, by Monday.
Will it be granted? – Based on news reports (i haven’t seen any of the court orders and writs in this case) : 1)The RTC-Pampanga issued a warrant of arrest; 2) The Court of Appeals through an injunction case filed by Lee, issued a resolution ordering the RTC-Pampanga “to lift” said warrant of arrest; 3)The prosecution, through the DOJ, filed an injunction case or an “appeal” in the Supreme Court (petition for certiorari and prohibition with application for a writ of prelim injunction and a TRO etc. under Rule 65 or an “appeal” from an order of the CA or petition for review and certiorari under Rule 45), asking the SC to stop or set aside the order issued by the CA; 4)Lee was arrested last night.
Is the arrest legal? 1) The police said that when the prosecution filed the injunction case in the SC (petition for certiorari and prohibition etc under Rule 65), or an appeal (“appeal” from an order of the CA or a petition for review and certiorari under Rule 45) the Court of Appeals, upon being notified of said action, issued an order “deferring” the execution of its order on the RTC “to lift” the arrest warrant. IF TRUE (that the CA issued such an order “deferring” the execution of its earlier order), then, yes, THE ARREST IS LEGAL.
2)IF NOT TRUE– If it is not true that there was such an order from the CA “deferring” the execution of its earlier order, is the arrest legal?
…. Hmmmm. Do not use the argument that just because you filed a Petition for Certiorari and Prohibition under Rule 65 in the SC or an appeal under Rule 45, that, thatstays the earlier order of the CA lifting the warrant of arrest. There’s no TRO, or stay order, or status quo order, or writ of prelim injunction, or any kind of order from the Supreme Court, staying or suspending the earlier order of the CA. It is basic that the mere filing of a Petition for Certiorari and Prohibition or an appeal under Rule 45 will not stay any questioned order. If you keep using this theory and not use any other remedial tactics, he will walk – Delfin Lee walks when a court hears his Petition for the Writ of Habeas Corpus.
Between now and Monday or Tuesday, get the TRO applied for in the SC.
If you cannot do that, use the argument that: When the CA issued its resolution ordering the RTC-Makati “to lift” the warrant of arrest, no motion was filed by Delfin Lee in the RTC-Makati to quash said warrant of arrest. The warrant of arrest does not quash by itself, or on its own, without any motion filed in the RTC that issued it , with a notice of hearing and a hearing upon the motion. And the accused never filed any such motion in the RTC to quash it, therefore, the warrant of arrest is still alive.
Igor-rrrr! (roll your rrr’s and use your Russian accent) — it’s ah-live!!! (bolt of lightning and clap of thunder).
Then, arraign him quickly. Once arraigned, the criminal case will proceed against him regardless of any ruling on his petition for the writ of habeas corpus.
The moral of the story is… the safe and prudent thing to do is, to always go back to the RCT that issued the warrant of arrest and go through the motions of quashing it in that court even after a higher court has issued an injunction — just to play safe.
Between now and Monday or Tuesday however, you’re going to see a Petition for the issuance of the Writ of Habeas Corpus fired your way (filed in court).
Legacy founder and beneficial owner Celso de los Angeles has resorted to the old trick of answering “i-don’t-remember-i-don’t-recall-i’m-not-aware-i’m-not-sure-and-its-variations” at the on-going Senate hearings today.
Artist not indicated. “Depositors Making a Run on a Bank during a Financial Panic in the 1800. Right-clicked from http://www.allposters.com, used here for non- commercial purposes, under the terms of , free service by blog-use of image provided by said site.
Legacy beneficial owner, because according to affidavits of certain of his bank and corporate officials disclosed in an ABS-CBN investigative report, while his name does not appear as president of his banks and pre-need companies, it is upon his instructions that certain money transfers were made, they (the bank and corporate officials) were informed by their superiors that the instructions from Manila were from Celso de los Angeles; he presided over certain meetings where fabricated loan schemes and other transactions were operationalized that resulted in the siphoning off of moneys held in trust by his banks and pre-need companies; and the proceeds of the fraudulent schemes with amounts ranging from P300 million to P400 million, landed in the account of a company that he owned/ owns.
“If evidence of any such purpose (“fraudulent, unfair, or illegal purposes”) is present, the courts will ‘pierce the veil of corporate entity’ and disregard the corporate fiction” (Campos, Corporation Law).
Do you know why he is resorting to amnesia?
Amnesia and forgetfulness is the refuge of those who do not wantto help government authorities in establishing facts that show criminal intent or by those who do not want to incriminate themselves but without invoking the right against self-incrimination because the criminal information has not been formally filed.
As everybody knows, criminal intent is shown not by reading the minds of suspects or the accused but by overt acts.
Overt acts in this case can be established by the testimonies of corporate officials who have personal knowledge of meetings and transactions and by documentary evidence.
For the crime of syndicated estafa, only the following elements need to be established by overt acts:
1.the money or funds were “received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same.”
What do these mean?
a.”received in trust” means that the holder of the money received the money for the purpose agreed upon between the holder and the contributors; the law makes the misapplication of these funds not just a breach of contract but a crime (estafa) because the holder or possessor never owned the funds and never had the right to use the funds as he pleases; these had been entrusted to him; in other words, the law considers such misapplication in breach of trust as a form of stealing the money; and in fact, it is a form of stealing.
b. or, “received for administration or obligation to return the same”, means the holder or possessor by agreement or by law has the obligation to return the money, and it was misapplied and the funds could not be returned to the contributors (the estafa laws then apply).
2.The second element for syndicated estafa is: a conspiracy of five or more persons: This means that at least five persons came to an agreement to commit the acts; mere agreement and participation in formulating the scheme is enough;
3.The third element is that it was ”formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme” : This refers to the conspiracy itself, not necessarily to the incorporation of the company or the formation of the entire bank.
In other words, it refers to: When the participants came to an agreement regarding the scheme or transaction, it was for the intent of siphoning off money. Although not everybody present in the meeting may have known at first that the purpose was to defraud stockholders, members, and depositors, it is enough that those who thought up the scheme had for their purpose the fraudulent transfer of moneys (in the hundreds of millions in this case).
How do you show that?
Again, by overt acts. Where did the hundreds of millions of pesos actually go?
Did those hundreds of millions of pesos go to sound, arm’s-length investments? Arm’s length means not self-dealing or not invested in your own companies to benefit your own companies and not to make the fund itself earn profits/ interest.
Or did the hundreds of millions of pesos go to personal accounts and expenses of the Legacy owners (1.bank accounts in his name 2.or in the name of his next-of-kin (an old trick) 3.or assignees (an old, tired trick), or to 4.bank accounts in the name of his companies (an old trick) 5.or bank accounts in the name of companies where the controlling interests are held by companies owned by him (another old, tired trick) in a three-tiered, four-tiered, five-layered corporate structure (the number of layers and tiers to hide the beneficial owner depends on the corporate savvy of his lawyers; they could bury the tiers in neck-deep of paperwork or a warehouse-full of paperwork of articles of incorporation and paper minutes of meetings of dozens or hundred of companies that if you were an investigator looking at it in order to “pierce the veil” or untangle the tiers, you might have to divide the work in an army of lawyers working everyday for months on it), election campaign expenses, floundering businesses, to mansions, yacht, luxury cars, a music video)?
How do you trace where the moneys had gone?
By paper trail as buttressed by testimonies of bank and corporate officials: Examples are: signed money transfers, documents establishing dates of purchases and signing of contracts, and withdrawals and placements of money, vehicle registration, land titles, etc.
4.The fourth element is: That the “defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s)”, or farmers association, or of funds solicited by corporations/associations from the general public.”
This means that the “misapplication” or the misappropriation or the fraudulent transfer of money (fraud is shown with overt acts discussed above) were of moneys contributed or entrusted by:
a.stockholders; or
b. members of rural banks; or
c.members of a cooperative; or
d.members of “samahang nayon”; or
e.members of farmers association; or
f. from the general public as funds solicited by the corporations or the association.
Documentary evidence show overt acts because the execution of contracts and the making of purchases are overt acts. They establish criminal intent. Investigators, prosecutors, and judges do not need to possess mental telepathy to read minds to show criminal intent, they just need to look at the evidence.
