Battle over Visayan Forum's 35 boxes
MANILA, Philippines – Investigators see these as key to an unprecedented case that pits, perhaps for the first time, a US government agency and a Philippine anti-trafficking organization that is accused of misusing American donations.
Kept by the National Bureau of Investigation (NBI), 35 boxes of allegedly faked receipts, along with other items, could prove that the group Visayan Forum (VF) misused up to P210-M (US$5.1-M) in donations from the United States Agency for International Development (USAID). The NBI seized these from VF's Quezon City office last August 31, leading to a falsification complaint before the Department of Justice (DOJ).
VF is the Philippines' leading non-government organization (NGO) in the global campaign against human trafficking. Its founder and executive director, Cecilia Flores-Oebanda, even received an award from the US State Department as one of its "heroes" in fighting modern-day slavery.
But the group is bent on fighting USAID in court.
To bar the NBI from using the 35 boxes against the multi-awarded organization, VF's lawyers on September 28 filed before a Quezon City court a motion to quash the search warrant that led to the raid.
In its 12-page motion, which was sent to Rappler, VF made 4 basic points to prove “there is no probable cause to issue the search warrant.” The group questioned the warrant's timing and coverage, as well as the credibility of the NBI's witnesses.
VF: Warrant too late
First, VF said, why apply for a search warrant only this year?
The group said the alleged offense, if indeed it happened, took place from 2005 to 2011. That was the coverage of the P300-M (US$7.3-M) port project from which VF allegedly misused over P200-M. “Yet the NBI agents applied for the search warrant only on August 31, 2012!”
“The remoteness in time between the alleged commission of the offense and the application for a search warrant shows the absence of probable cause,” explained VF through its lawyers Jose Flaminiano, J Alberto Flaminiano, and Laurence Hector Arroyo in their motion to quash the search warrant.
The VF lawyers cited a Supreme Court (SC) ruling in which a search warrant was nullified due to similar circumstances. The warrant, which was issued in 1965, ordered the seizure of documents allegedly falsified from 1961 to 1964.
“The time of the application is so far remote in time as to make the probable cause of doubtful veracity and the warrant vitally defective,” the SC ruled in 1973.
Second, VF slammed the “overly broad” description of documents to be seized, which included books of accounts, ledgers, and vouchers; desktops and laptops of VF's finance manager, finance officer, bookkeeper, and administration officer; and unused pre-printed official receipts, official receipts and cash vouchers that can be bought from bookstores, and VF cash vouchers and stationeries.
The beleaguered group said this violates the rule “that the things to be seized should be described with sufficient particularity.”
VF noted the supposed lack of knowledge of the auditor from the Cavite-based firm BF Medina and VF's former bookkeeper, Maria Analie Villacorte, on the items to be seized. How could this happen, according to VF, if BF Medina audited the organization for nearly 5 months while Villacorte had been working with VF for 5 years?
“In other words, plaintiff was not sure what it was looking for; they had embarked on what is clearly a fishing expedition,” the NGO said.
The group cited the seizure of the computers of the finance manager, finance officer, and administrative officer, “which neither the auditor nor the bookkeeper had access to.” Therefore, VF claimed, the witnesses “could not possibly have known” the computers' contents.
“Suspicion that the computers of officemates may contain evidence relevant to falsification charges is not sufficient basis to issue a search warrant; suspicion does not meet nor rise to the level of the standard of probable cause,” VF explained.
Besides, VF described the computers as “highly sensitive,” supposedly containing confidential records of the 21-year-old NGO's beneficiaries – victims of prostitution and other forms of modern-day slavery.
“The last thing these victims need or want is to have an information about them leaked to third persons. The sweeping nature of the search warrant violates the dearly held and constitutionally protected right to privacy of these women and children,” the group said.
'Quick to please USAID'?
The third point VF made is that the warrant failed to identify “one specific offense,” even as Article 171 of the Revised Penal Code describes 8 different ways to commit falsification. “Clearly, then, the search warrant is a 'scatter shot warrant.'”
Fourth, VF sought to debunk the credibility of the NBI's agents and witnesses.
The group stressed that the former bookkeeper, Villacorte, is guilty of falsifying documents. In her affidavit, Villacorte admitted falsifying documents but allegedly under the orders of VF's multi-awarded founder, Oebanda – a claim that VF denies.
In its motion, VF said “it appears that the only probable cause established by the plaintiff with respect to the alleged falsification of official receipts is that the bookkeeper herself, on account of her own incriminating admission, has falsified documents.”
The evidence against the NGO, according to VF, “is based on the mainly hearsay misleading, vague, speculative, irrelevant, and bad faith testimonies of the NBI agents and their witnesses.”
“It appears that the NBI was only too quick to please the Americans at the USAID; too quick to swallow hook, line, and sinker the wild accusations of a paranoid auditor; too quick to absolve an apparently guilty bookkeeper; and saddest of all, too quick to think the worst of the Filipino officers of Visayan Forum Foundation Inc, who have devoted their lives to saving, protecting, and sheltering abused and exploited women and children," VF explained.
(Read VF's entire motion to quash below.)
NBI: Strong case
The Office of the Solicitor General (OSG), which is representing the NBI before the Quezon City Regional Trial Court, has not filed a comment on or opposition to VF's motion to quash.
The OSG told Rappler on Monday, November 12, that it has not received a court order to do so, even after the case has been reshuffled to another judge. The OSG said it will file a reply once the court orders this.
The NBI, for its part, has stressed that its case against VF is strong.
In interviews with Rappler, NBI officials have said the case against VF revolves around solid pieces of evidence. These include an independent audit from March to July this year; testimonies by the former bookkeeper and other former VF employees; a month-long surveillance operation with undercover work by NBI agents; and around 35,000 allegedly faked documents in 35 confiscated boxes.
But why did the NBI apply for a search warrant only in 2012, as VF said?
Earlier, NBI anti-graft chief Rachel Marfil-Angeles said the NBI merely acted on a letter from Daniel Altman, special agent-in-charge of USAID's Office of the Regional Inspector General. Altman wrote this letter only in around July this year.
"After that, we conducted our surveillance on the office of Visayan Forum, and we were able to gather information of the fabrication of the receipts to support the discrepancies in the budget proposals submitted by Visayan Forum to USAID," Angeles explained. (Editor's note: Angeles is now on study leave.)
The NBI has also emphasized that the audit by BF Medina, a relatively small firm, is independent. VF itself, in fact, chose it from USAID's list of proposed auditors.
The NBI has added that based on their witnesses' testimonies, all the seized items have some connection to the case. The bureau also said it confiscated only some, not most, computers in VF during the time of the raid.
The OSG's response is expected to spark more legal fireworks in what, as both sides admit, is a first in their careers. When, after all, can a lawyer handle a case initiated by an agency of the world's most powerful government?
The battle begins with 35 boxes among other confiscated items. Whoever gets to keep these wins round one of this historic case. – Rappler.com
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