Dichaves vs. Office of the Ombudsman

The Supreme Court affirmed the Office of the Ombudsman's finding of probable cause to charge Jaime Dichaves with plunder, holding that (1) the Ombudsman's determination of probable cause is an executive function entitled to judicial non-interference absent grave abuse of discretion; (2) the right to confrontation and cross-examination is a constitutional right that attaches only during trial after the filing of an information, not during preliminary investigation which is governed by statutory limitations; (3) the Ombudsman is not bound by technical rules of evidence and may rely on substantial evidence and take judicial notice of related decided cases; and (4) there exists probable cause showing Dichaves participated in a conspiracy with former President Estrada to amass ill-gotten wealth through the "Jose Velarde" account and Belle Corporation shares transactions.

Jaime Dichaves was implicated as one of the John Does in the plunder case against former President Joseph Ejercito Estrada (Criminal Case No. 26558) involving two distinct schemes: the maintenance of the "Jose Velarde" account at Equitable-PCIBank containing billions of pesos in ill-gotten wealth, and the anomalous purchase of Belle Corporation shares by the Government Service Insurance System (GSIS) and Social Security System (SSS) where Dichaves allegedly acted as conduit for kickbacks to Estrada. Following Estrada's impeachment in November 2000 and the controversy over the sealed second envelope containing evidence implicating Dichaves, he fled the country in 2001, evading arrest until his return in November 2010.

• Two complaints were filed before the Office of the Ombudsman in 2001: OMB-0-01-0211 regarding the "Jose Velarde" account at Equitable-PCIBank, and OMB-0-01-0291 regarding the purchase of Belle Corporation shares by GSIS and SSS.
• The "Jose Velarde" account (Savings Account No. 0160-62501-5) was opened under a fictitious name at Equitable-PCIBank, Binondo, Manila, and contained deposits totaling approximately P3.3 billion including proceeds from illegal gambling, kickbacks, and commissions.
• Dichaves allegedly deposited P210 million to the "Jose Velarde" account: a P20 million check dated September 8, 1999, and a P189.7 million check dated November 8, 1999 representing commissions from the Belle Corporation transaction.
• Regarding the Belle Corporation transaction, Dichaves, as a board member of Belle Corporation and second cousin of Vice Chairman Willy Ng Ocier, allegedly informed Ocier that GSIS and SSS would purchase Belle shares only if a commission of P200 million was given to former President Estrada.
• On October 13-21, 1999, GSIS purchased 351,878,000 shares for P1,102,965,607.50 and SSS purchased 329,855,000 shares for P744,612,450.00, totaling approximately P1.85 billion.
• On November 3, 1999, Ocier personally handed Dichaves a check for P189.7 million representing the profit commission, which Dichaves allegedly deposited to the "Jose Velarde" account.
• Dichaves claimed ownership of the "Jose Velarde" account as part of a "common fund" of Chinese businessmen and used the alias for security purposes.
• On January 10, 2012, Ocier executed an affidavit of recantation claiming Dichaves had nothing to do with the Belle shares transaction and that the P189.7 million was Dichaves' personal investment to the common fund, contradicting his previous testimonies before the Senate and Sandiganbayan in 2000-2001.
• Dichaves fled the country following Estrada's impeachment in January 2001 and remained abroad until his return in November 2010, thereby evading the initial warrant of arrest and the trial of People v. Estrada.

• The Office of the Ombudsman committed grave abuse of discretion in finding probable cause to charge him with plunder.
• He was denied due process because he was not given the opportunity to cross-examine witnesses Clarissa Ocampo, Atty. Manuel Curato, and Willy Ng Ocier regarding their testimonies from Estrada's impeachment and plunder trials, rendering such evidence hearsay and inadmissible.
• The Ombudsman improperly considered pieces of evidence not presented during the preliminary investigation, specifically the records and testimonies from Estrada's impeachment and plunder trials.
• There is no probable cause to charge him with plunder because Ocier recanted his testimony in January 2012, claiming Dichaves had no participation in the Belle shares transaction.
• He is the true owner of the "Jose Velarde" account as part of a common fund of Chinese businessmen, not former President Estrada.

• The Office of the Ombudsman exercises a constitutional mandate and wide latitude in determining probable cause, and courts should not interfere absent grave abuse of discretion.
• The right to cross-examine witnesses does not attach during preliminary investigation; it is a statutory right under the Rules of Court, not a constitutional right, and applies only during trial after the filing of an information.
• The Ombudsman is not bound by technical rules of evidence in determining probable cause; only substantial evidence is required based on common sense and practical considerations.
• The finding of probable cause was grounded on the affidavits of Carlos Arellano, Federico Pascual, and Mark Jimenez, and documentary evidence presented during the preliminary investigation, not merely on the records of Estrada's trials.
• The Ombudsman may properly take judicial notice of the decided case of People v. Estrada as it is related to the present case and forms part of Philippine jurisprudence.
• The weight and credibility of Ocier's recantation is a matter of defense that should be determined by the trial court during the trial proper, not by the Ombudsman during preliminary investigation.
• There is substantial evidence showing Dichaves orchestrated the Belle shares transaction, received the P189.7 million commission from Ocier, and deposited it to the "Jose Velarde" account belonging to Estrada, establishing conspiracy to commit plunder.

• Procedural Issues:
  • Whether the Office of the Ombudsman committed grave abuse of discretion in finding probable cause to charge petitioner with plunder.
  • Whether petitioner was denied due process by not being allowed to cross-examine witnesses during the preliminary investigation.
  • Whether the Ombudsman improperly considered evidence from Estrada's impeachment and plunder trials that were not presented during the preliminary investigation.
• Substantive Issues:
  • Whether there exists probable cause to charge petitioner with plunder under Republic Act No. 7080 based on his alleged conspiracy with former President Estrada in amassing ill-gotten wealth through the "Jose Velarde" account and Belle Corporation shares transaction.

• Procedural:
  • The Office of the Ombudsman did not commit grave abuse of discretion. The determination of probable cause is an executive function entitled to judicial non-interference unless exercised in a capricious, whimsical, arbitrary, despotic, or tyrannical manner.
  • Petitioner has no constitutional right to cross-examine witnesses during preliminary investigation. The right to confrontation under Section 14(2), Article III of the Constitution applies only during trial after the filing of an information, not during preliminary investigation which is governed by statutory limitations under the Rules of Court.
  • The Ombudsman did not base its finding on the records of Estrada's impeachment and plunder trials, but rather on the affidavits of Arellano, Pascual, and Jimenez, and documentary evidence submitted during the preliminary investigation. Even if the Ombudsman took judicial notice of People v. Estrada, this is permissible as the cases are related and the prior case has become part of Philippine jurisprudence.
  • The determination of the admissibility and weight of Ocier's recantation is for the Sandiganbayan to rule upon during trial, not for the Ombudsman during preliminary investigation.
• Substantive:
  • There is probable cause to charge Dichaves with plunder. The evidence indicates that Dichaves orchestrated the consummation of the Belle Corporation transactions, received from Ocier the check representing the commission, and deposited the same to the "Jose Velarde" account which was shown to belong to former President Estrada, thereby establishing conspiracy to amass ill-gotten wealth under Section 2 of Republic Act No. 7080.

• Non-interference with the Ombudsman's finding of probable cause — Courts will not interfere with the Office of the Ombudsman's exercise of its constitutional mandate to investigate and prosecute unless there is grave abuse of discretion, in order to respect the investigatory and prosecutory powers granted by the Constitution and to prevent the courts from being swamped with petitions assailing the Ombudsman's exercise of discretion.
• Grave abuse of discretion — Defined as a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction, or an arbitrary or despotic manner of exercising power that is so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law.
• Nature of Preliminary Investigation — Preliminary investigation is merely an inquiry to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty; it does not require a full and exhaustive display of the parties' evidence.
• Right to Cross-examination — The constitutional right to confront and cross-examine accusers under Section 14(2), Article III of the Constitution attaches only during the trial proper after the filing of an information, not during preliminary investigation where rights are merely statutory.
• Substantial Evidence in Preliminary Investigation — The public prosecutor is not bound by technical rules on evidence in determining probable cause; the determination requires only substantial evidence based on the factual and practical considerations of everyday life on which reasonable and prudent men act, not absolute certainty of guilt.
• Judicial Notice — The Ombudsman may take judicial notice of facts and evidence established in related and decided cases, particularly where the present case is an offshoot of previous proceedings involving the same transactions and parties.

• "Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner — which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law — in order to exceptionally warrant judicial intervention."
• "A person's rights in a preliminary investigation are subject to the limitations of procedural law. These rights are statutory, not constitutional."
• "It is the filing of a complaint or information in court that initiates a criminal action, and carries with it all the accompanying rights of an accused. Only when a person stands trial may he or she demand 'the right to confront and cross-examine his [or her] accusers.'"
• "In determining probable cause, the average [person] weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he [or she] has no technical knowledge. He [or she] relies on common sense."
• "The determination of whether Ocier's affidavit of recantation should be considered is for the Sandiganbayan, during trial, to rule upon."
• "In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

• People v. Estrada — Cited as the principal case where former President Estrada was convicted of plunder; the Ombudsman properly took judicial notice of this case as Dichaves was one of the John Does therein and the evidence established therein was relevant to the preliminary investigation.
• Republic v. Ombudsman Desierto — Cited for the principle that courts should not interfere with the Ombudsman's investigatory and prosecutory powers to avoid hampering the courts with innumerable petitions assailing the dismissal or resolution of investigatory proceedings.
• Casing v. Hon. Ombudsman, et al. — Cited for the definition of grave abuse of discretion as a capricious and whimsical exercise of judgment.
• Estrada v. Office of the Ombudsman — Cited for the principle that rights in preliminary investigation are statutory, not constitutional, and that the right to cross-examine does not attach during preliminary investigation.
• Kalalo v. Office of the Ombudsman, et al. — Cited for the definition of probable cause determination as requiring only substantial evidence and common sense, not technical rules of evidence.
• Atty. Paderanga v. Hon. Drilon — Cited for the rule that the admissibility or inadmissibility of testimonies should be ventilated before the trial court during the trial proper, and not in the preliminary investigation.
• Brinegar v. United States — Cited for the definition of probable cause as dealing with probabilities and the factual and practical considerations of everyday life.

• Constitution, Article XI, Sections 5, 12, and 13(1) — Provisions creating the independent Office of the Ombudsman, granting it powers to investigate public officials, and mandating it to act promptly on complaints.
• Constitution, Article III, Section 14(2) — The right of the accused in criminal prosecutions to meet the witnesses face to face, which applies only during trial and not during preliminary investigation.
• Republic Act No. 7080 (Plunder Law), Section 2 — Defines plunder and punishes any person who participated with the public officer in the commission of acts contributing to the crime of plunder through a combination or series of overt or criminal acts.
• Republic Act No. 6770 (Ombudsman Act of 1989) — Grants the Ombudsman wide latitude to act on criminal complaints against public officials and employees.
• Rules of Court, Rule 112, Section 3 — Governs preliminary investigation and provides that the respondent shall only have the right to submit a counter-affidavit and examine evidence without the right to cross-examine.