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DOJ and De Lima spar over new 'eyewitness' of drug payoff

After Senator Leila de Lima's acquittal in 1 of the 3 drug charges against her, the jailed opposition leader now has to spar with the Department of Justice (DOJ) prosecution over a witness claiming to have seen the senator receive drug payoff money in March 2014.

The prosecution presented on Tuesday, February 23, murder convict Joel Capones who told the Muntinlupa Regional Trial Court (RTC) Branch 256 that he sold drugs in and out of the New Bilibid Prison on the instruction of the late Jaybee Sebastian. Capones said Sebastian told him it was to raise funds for De Lima's 2016 senatorial campaign.

Banking on this admission, De Lima's defense lawyer Boni Tacardon immediately filed on Tuesday a motion to the court to include Capones in the charges.

It turns out Capones was deemed eligible for parole back in October 2014 and was set for release December that year, but it was scuttled due to reasons unknown to the prosecution. De Lima wrote to the Bureau of Pardons and Parole on Monday, February 22, urging it to give Capones a negative evaluation in light of his admission.

What happened in March 2014

In an affidavit dated October 6, 2016, Capones said that he saw Sebastian give P1.4 million to De Lima inside Bilibid.

"May isang pagkakataon kung saan tinawagan ako ni Jaybee at sinabi sa akin na pumunta ako sa kubol niya at dalhin ko ang pera dahil patutunayan niya na ang koleksiyon ay para kay Sec De Lima," said Capones' affidavit.

"Pumunta ako at maya-maya'y dumating nga si Sec De Lima at nakita ko na iniabot sa kanya ni Jaybee ang pera na dinala ko. Pagkatapos nito ay nag-usap na sila ni Jaybee ng pribado."

(There was one time that Jaybee called me into his cell and told me to bring the money so he could prove that the collection was for Secretary De Lima. I went, and after a while, Secretary De Lima arrived, and I saw that Jaybee handed her the money that I brought. After that, she and Jaybee talked in private.)

On the witness stand, it was clarified that this payoff allegedly happened on March 4, 2014, during the anniversary of the Sigue-Sigue Commando gang, of which Capones and Sebastian are leaders.

However, on the stand, Capones said he only saw Sebastian show the money to De Lima, not hand it to her as what was said in the affidavit.

Lead prosecutor Ramoncito Ocampo attested to this, saying: "(Sebastian) showed it to the secretary, but of course (Capones) does not know whether the secretary took it after he left."

"Secretary" refers to De Lima, who was justice secretary at the time.

In the DOJ's resolution in February 2017 that indicted De Lima, Capones' general account of this payoff was already quoted. However, Jaybee Sebastian's part in the indictment only mentioned a P2-million payoff "a few days before Christmas" of 2014.

The indictment said Sebastian was approached by De Lima's ex-aide Joenel Sanchez to raise funds for the former secretary only on December 18, 2014.

Ocampo said it's possible Sebastian did not mention the March 4, 2014 payoff before.

"Maybe because in all kinds of investigations, sometimes the person being investigated only answers or focuses on the topic that is the subject of the inquiry," Ocampo told reporters after the hearing.

Tacardon called these inconsistencies "flip-flopping," and noted that Capones' testimony of De Lima going inside Bilibid on March 4, 2014, without jail directors was unbelievable and a lie.

Ocampo said they would hold a redirect examination of Capones in the next hearing set on April 16.

Appeal to Guevarra

Anticipating the testimony, De Lima wrote to Justice Secretary Menardo Guevarra on Monday and asked in the letter: Why didn't the DOJ charge this convict in any of the 3 cases filed against her? (READ: In trial's pivotal turn, De Lima says DOJ obscured truth about drug trade)

De Lima told Guevarra in her letter: "The inaction of the DOJ in holding Mr Capones to account for his self-confessed criminal acts, despite knowledge of his culpability, is a serious dereliction of duty and puts in question the seriousness of the Duterte administration's resolve in fighting crime and illegal drugs."

"I strongly urge you use all powers available under your office to prosecute anyone who has been involved in illegal drug trading in the New Bilibid Prison without any fear or favor, and to charge those responsible with utmost resolve, including Mr Capones and his 13 mayores under the Sigue Sigue Sputnik Gang," De Lima said.

"I have read Senator De Lima's letter this morning, and I'll take the matter that she brought to my attention under advisement," Guevarra told reporters on Tuesday.

Motion for reconsideration

Capones is the third government witness to take the stand and claim to have personally seen De Lima in a drug payoff.

The first and second are former corrections acting chief Rafael Ragos and agent Jun Ablen, whose testimonies were given weight by Muntinlupa RTC Branch 205 when the court denied De Lima's plea to dismiss the case based on weak evidence, and ordered the trial in that case to proceed.

Sebastian pleaded guilty to the case in Branch 256, but he never got to take the witness stand before he died of coronavirus inside Bilibid in July 2020.

De Lima has filed a motion for reconsideration in Branch 205's order junking her plea, saying the judge there seemed to have taken Ragos' and Ablen's testimonies hook, line, and sinker.

De Lima said the judge's order did not take into consideration the inconsistencies that her lawyers were able to extract during cross-examinations.

"A reader would be led to believe that this was an Order resolving a Motion that was filed before the witnesses were ever presented and made to testify, and without their competence and credibility being tested in open court," said De Lima.

In her order, Judge Liezel Aquiatan said that De Lima must address Ragos' and Ablen's testimonies. Those accounts, if unrebutted, would support a preliminary finding of guilt, said the judge.

"Thus, unsurprisingly, the Omnibus Order created an unfair impression that the witnesses all testified to a seamless and wholly credible narration of accused De Lima's guilt when, in fact, the prosecution's own witnesses undermined the prosecution's own case," said De Lima.

De Lima made an example of former criminal investigation and detection group chief and now Baguio Mayor Benjamin Magalong who testified on the stand that it was Ragos, not De Lima, who turned up in their intelligence as having links to drug trade.

Magalong's testimony was "a key fact that was conspicuously left out from the recitation of facts set forth in page 2 of the Omnibus Order," said De Lima's appeal.

As for Ablen, the defense was able to bring out during trial an old memorandum by Ragos saying Ablen was the one involved in illegal drug trade.Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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