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REPUBLIC OF THE PHILIPPINES OFFICE OF THE OMBUDSMAN FOR THE MILITARY AND OTHER LAW ENFORCEMENT OFFICERS 3RD

FLR. OMBUDSMAN BLDG. AGHAM ROAD DILIMAN, QUEZON CITY SPS. FELIPE & EVELYN PESTAO COMPLAINANTS, -- VERSUS --

OMB-PA. 1223-5 For: MURDER

CAPT RICARDO ORDOEZ, ET. AL, DEFENDANTS. X____________________________________X

THE POSITION PAPER

Complainants, the spouses Felipe and Evelyn Pestao, parents of the late Ensign Phillip Andrew A. Pestao, by counsel, and unto this Honorable Office, respectfully present their Position Paper with the following submissions: PREFATORY STATEMENT

When physical evidence runs counter to testimonial evidence, conclusions as to physical evidence must prevail.1 Of the gruesome and untimely death of Ensign Phillip Andrew A. Pestao there are very few facts that are not disputed. Yes, he was found dead inside his stateroom on the ship BRP Bacolod City(LC 550) on September 27, 1995 as it was heading for the Philippine Navy headquarters on Roxas Boulevard, Pasay City from Sangley Point in Cavite. He was only 23 years old, a be-medaled member of the Philippine Military Academy (PMA) Maalab Class of 1993, and a cargo and deck and gunnery officer of his last ship of duty who at the time of his untimely death, had a promising career ahead of him. But most everything else is under question. In fact, there is no doubt that the single most controversial and most disputed characterization of his grievous passing is that it was nothing more than a case of an unfortunate but undeniable suicide. It was a straight-forward case of a suicide, naval authorities said, conveniently following the haphazard and slipshod investigations of the Western Police District and the National Bureau of Investigation (and much later, the Criminal Investigation and Detection Group). But Ensign Pestaos death presented by these investigative agencies as that tragic but ultimately inscrutable event of a young and promising life untimely snuffed out

People v. Aguinaldo 316 SCRA 819 (1999).

by unseen psychological forces simply had far too many loose ends to invite ready credence as no more than self-inflicted. For one, Ensign Pestaos personal and professional circumstances at the time of his death simply do not fit the bill of someone who would take his own life. As a naval officer a graduate of no less than the Philippine Military Academy (PMA), the countrys top military school he excelled in his professional undertakings he was about to marry his lovely fiance; it simply did not make any sense As more and more details of his death were brought to light, investigations carried out by the WPD, NBI and the CIDG started looking like a massive cover-up more than slipshod and haphazard efforts at finding the truth; His family thus embarked on a long and continuing quest for justice for their fallen son, now running into its 14th year. Why his death is not the result of a self-inflicted shot to the head and who are responsible for his death are the subject of the discussion in the following sections of this Position Paper. More importantly, this Position Paper presents new pieces of evidence recently uncovered that supports the filing of charges against the Respondents. A MANIFESTATION ON THE PROCEDURAL ANTECEDENTS OF THE CASE 1. After eight joint committee hearings over a one-year period, the Senate Committees on Justice and Human Rights and on National Defense and Security issued on January 29,1998 the joint Committee Report No.900 on the mysterious death of Ensign Phillip Andrew A. Pestao on September 27, 1995 onboard the BRP Bacolod City. 2. Committee Report No. 900, among other things, concluded that the junior navy officer did not kill himself aboard [the ship]2 but that there was a deliberate attempt to make it appear that [he] killed himself in his stateroom3 and that the attempt to make it appear that Pestao killed himself inside his stateroom was so deliberate and elaborate that one person could not have accomplished it by himself.4 A veritable cast of the countrys top private forensic medicine experts, namely, Dr. Ernesto Gimenez, Dr. Dario Gajardo, Dr.Antonio Rebosa and Dr. Bu Castro,provided expert testimony debunking the suicide theory. They were complemented by American experts Mr. Wayne Hill Sr., a crime scene reconstruction pioneer and Mr. Ron Rice, a handwriting analysis specialist, Filipino ballistics experts Dean Artemio Panganiban, Jr. and Prof. Ernulfo Grimares, and questioned documents expert, Col.Pedro Elvas (ret.), former head of what is now the PNPs Crime Laboratory Service. 3. Committee Report No. 900 made the following relevant recommendations to the Office of the Ombudsman: iii. An independent investigation be conducted by the Ombudsman on (a) the legality of loading more than 14,000 board feet aboard BRP Bacolod City in September 1995; and (b) the
2

Senate Joint Committee Report No. 900, Committees on Justice and Human Rights, and on National Defense and Security, January 29, 1998 at 48. [hereinafter, Committee Report No. 900]. Its conclusions and recommendations were referenced in the Joint Complaint Affidavit dated Oct. 27, 2005 as ANNEX S. For the convenience of the Honorable Office, a complete copy of the same Report is attached, albeit, as stated, the full contents of the same Report had been previously referred to it by the Senate. 3 Id. 4 Id.

legality of discharging fuel oil in Mindanao in September 1995and the liability, if any, of persons who authorized such discharge; iv. An independent investigation be conducted on the circumstances surrounding the killing of Ensign [Phillip Andrew A.] Pestao with the end in view of bringing the perpetrator(s) to justice, as well as identify the persons who participated in the deliberate attempt to make it appear that Pestao killed himself.5 4. But in his March 28, 2000 Resolution, then Ombudsman Aniano Desierto, while he conceded to the findings of the Senate legislative investigations that the victim was indeed murdered, he concluded that the conduct of further investigation is no longer warranted as it would only be a waste of time, considering that the physical evidence, according to him, had been tampered with, and not to mention the lapse of time. 5. Some five years later during the term of Ombudsman Simeon Marcelo, on October 11, 2005, Complainants filed an Ex-Parte Motion to Re-Open the Case for Submission of Newly Found Evidence Against the Now Named Respondents. As the Motions title said newly-discovered evidence justified the reopening of the investigation on the case. 6. On October 27, 2005, Complainants filed a joint Complaint-Affidavit accusing all the Respondents (with the exception of P01 Mil I. Leonor and a ship crew identified only as SN1 Miranda who would be included later) of conspiring in the victims murder. In response, Director Rudiger Falcis II issued an Order dated December 6, 2005 finding the Joint Complaint-Affidavit filed by the Complainants here, the Pestao couple, parents of the slain officer Ensign Phillip Andrew A. Pestao, to be sufficient in form and substance. He thereby directed Respondents to file their Counter-Affidavits within 10 days from receipt. Complainants, according to the Order, may file a Reply-Affidavit within 10 days of the receipt of Respondents Counter-Affidavits. 7. The case had criminal and administrative aspects. The Order was issued under the Case Title OMB-P-CP05-1228-J (OMB-P-A-05-1223-J) for: Murder and Grave Misconduct. Note that there was only one Order covering both criminal and administrative cases. Para. 3 of the said Order stated that Failure of respondents to file their counter-affidavits and/or submit all requirements of this Order shall be construed as a waiver of the right of preliminary investigation. Likewise, failure of the complainants to submit a reply shall be construed as a waiver of the right to present rebuttal evidence. Consequently, the instant case shall be deemed submitted for resolution on the basis of the evidence on record, without further notice. 8. The deadlines for submission of documents in both cases were the same. In fact, Respondents failed to submit their Counter-Affidavits within the prescribed period of time. It was much later when five of the Respondents submitted their Counter-Affidavits. The five Respondents are namely CAPT Ricardo Martinez Ordoez, LCDR Reynaldo P. Lopez, LCDR Luidegar Cruz Casis, LT Joselito

Id.

Lugay Colico , LT Aquino. 9.

Alfrederick Angeles Alba and HM2 Wilmenio Ulzame

All five Respondents make a blanket denial of the allegations against them. The Position Paper refers to the currently known ranks of Respondents and not the ranks they carried at the time of the victims murder, with the exception of LT SG Roque, who has already left the Philippine Navy and is said to have gone abroad, as well as of the designation of their ranks contained in referenced documents.

10. As noted above, under the Rules of this Honorable Office, the Respondents should already have been deemed to have waived their right to controvert the allegations against them in the Joint Complaint; moreover the case should already have been submitted for resolution on the basis of the evidence on record, without further notice. 11. Incomprehensibly, however, Complainants heard nothing from this Honorable Office about any such resolution that, under its own Rules, this Honorable Office was supposed to render on the instant case based on the evidence Complainants had already presented. 12. But two years later, on August 10, 2007, the Honorable Office issued another Order asking both parties to file their Position Paper under OMB-O-A-05-1223-J for Grave Misconduct. The Complainants believed this was a request for a Position Paper on the criminal aspect of the case; it is clear to them now that from the records of the case, the Honorable Office had given the Respondents sufficient time to respond to the allegations in the murder case, and they failed to respond to the allegations within the period given them to file their respective CounterAffidavits. 13. Meanwhile, Complainants would seek several extensions of time to file the Position Paper on the mistaken notion that the Position Paper was for the murder case they filed against Respondents. The Honorable Office never bothered to correct them. It is only now that they discovered the mix-up. It must be said too that until now, Complainants have yet to be furnished a copy of the Position Paper of the Respondents, if such was at all submitted to this Honorable Office. 14. Having made this manifestation, Complainants nevertheless submit this Position Paper to the Honorable Office and ask that it be admitted as part of the records of both the criminal and administrative proceedings in question, in the interest of justice.

STATEMENT OF FACTS Some key undisputed facts of the case: 15. Around 4:30 a.m. of September 27, 1997, Ensign Pestao, dressed in a T-shirt, a pair of shorts and a pair of rubber shoes, left his familys home in Loyola Heights, Quezon City for Sangley Point, Cavite.6 16. At 5:40 a.m. he boarded the BRP Bacolod City.7 17. A few hours later, Ensign Pestaos lifeless body was later reported to have been discovered in his stateroom, lying motionless, perpendicular to the bed, both feet on the floor, an old, Colt 1911 model government-issue gangway duty .45 caliber pistol between his feet, and arms stretched out. The room measuring 9 by 10 had walls layered over in white by wall paper but there was not a drop of blood spattered on the same walls, with the exception of a solid swipe of blood on one of the walls in the room, the presence of which will be explained below. 8 18. His colleague LT Joselito Lugay Colico, the man who claimed to have first came across the fact of the controversial death of the navy officer, later on picked up the gun with a piece of cloth, claiming his purpose was to safeguard it and prevent it from causing further harm on others9 (as to what he exactly did with the gun after picking it up is a matter of conflicting accounts among the Respondents who supposedly were with him at that time). 19. As to the time he made his discovery, it will later on be shown in the discussion below how LT Colico would repeatedly correct himself. 20. His superiors later said it was Ensign Pestaos absence at his station after Special Sea Detail was called that triggered a search for him and led to the discovery of his death in his stateroom. 10 21. At about 9:43 a.m., a team of Western Police District (WPD) investigators composed of SP01 Dennis Javier, SP01 Efren Cruz and SP04 Myrna Recasa arrived at the Philippine Navy Headquarters to investigate the death of the navy officer. They took pictures of the death scene but did not lift fingerprints from it, or from the other pieces of evidence recovered there.11 22. They wrote down the results of their investigation in an Advance Information dated September 25, 1995, signed by SP01 Dennis Javier. In this result they listed articles recovered at the stateroom, namely: 1. One (1) Colt 1911 .45 caliber pistol bearing Serial No, 1291008 with one (1) magazine and five live bullets of .45 caliber. 2. One (1) slug what appeared to be a .45 caliber bullet.
6 7

Senate Committee Report No. 900 at 3. Id. 8 For an extensive discussion, see the scrapbook of key forensic issues, attached as ANNEX C to the Joint Reply-Affidavit dated January 26,2006. 9 Committee Report No. 900 at 6; see also discussion in infra. paras. 178-183. 10 Id. at 4. 11 Id. at 8, 33-34.

3. One (1) empty shell of .45 caliber bullet. 4. One (1) suicide note written in a piece of paper.12 23. None of the pictures they took recorded any bullet-mark or hole in the cabin. 13 24. The alleged suicide note undated and appeared to have been folded before read: To my parents, brothers and sisters, I am very sorry. Hindi ko na kaya. Dont pity me. I am very sorry for everything. I do not know what to do anymore. Its a very big burden for me to handle all of this. I love you very much. I am sorry.

Love, Phillip14 25. Before the WPD investigators arrived, however, several friends and former classmates at the Philippine Military Academy (PMA) of the victim detailed at other nearby Navy units were able to view the death scene. They recall having seen (a) Ensign Pestaos body; (b) the alleged suicide note;(c) a pool of blood on the floor and (c) no bullet dent or mark on any wall of the victim stateroom.15 26. The victims body was taken to the Funeraria International on Rizal Avenue, Sta.Cruz, Manila, escorted by two survivor officers Ensign Pestaos mistahs Ensigns Edwin Vigilar and Raul Regis. They arrived there at around 12:15 p.m.16 27. A staff member of the funeral home washed the victims body with a hose after the victims clothes were removed; the funeral home assistant then placed the hose, with the water still flowing, under the bodys left arm. Ensign Vigilar, when he saw that the blood was still trickling down the victims right ear, got the hose and let the water run through the ear. In the process, more water was splashed onto the hands and body of the victim. Afterwards, Ensign Vigilar returned the hose to its original position under the bodys left arm. 17 28. At around 1:30 p.m. of the same day, a medical officer of the WPD, Dr. Manuel Lagonera, arrived at the funeral parlor, purportedly to perform a partial autopsy on Ensign Pestaos body; as he did so, he claimed to have noted the measurements of the entry and exit wounds; the presence of black particles in the cotton swab he used to clean the entrance wound; and the location of the wound above the victims left ear.

Committee Report No. 900 at 8. Id. at 33-34. 14 Id. at 39. 15 Id. at 32-33; See also the discussion in infra. para. 67 of this Position Paper. 16 Id. at 11. 17 Id.
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29. However he could not show any written report of his findings because he did not write any.18 30. He left before the victims parents arrived at the funeral house at around 3:30 p.m. The parents waited for Dr. Lagonera to return, only to be disappointed; after about an hour of waiting for naught, they decided to move their sons body to the Philippine National Police Crime Laboratory Service in Camp Crame, arriving there at around 6 p.m19. 31. There, the Crime Laboratorys attending medico-legal officer, Dr. Owen J. Lebaquin, would carry out a more thorough autopsy on the victims remains. 32. He put down his findings in an Autopsy Report. The relevant portions of the Report read: Postmortem findings: XXX HEAD: 1) Gunshot wound, thru and thru, point of entry, right temporal area of the head, measuring 1`.2 cm by 1 cm, 11 cm from the anterior midline with an abraded collar, measuring 0.2 cm medially, superiorly and 0.1 cm inferiorly and laterally, directed posteriorwards, downwards and to the left, fracturing both sphenoid, both temporal, both orbital plates, lacerating the parietal lobe of the brain, making a point of exit at the left post-auricular region, measuring 1.2 cm by 1.2 cm, 15.7 cm from the posterior midline. 2) Contusion, right temporal region, measuring 1.6 by 0.6 cm, 9.3 cm from the anterior midline. 3) Contusion, right temporal region, measuring 0.9 cm by 0.6 cm, 9.6 cm from the anterior midline. 4) Lacerated wound, pinna of the left ear, measuring 1 by 0.4 cm. 5) There are subdural and subarachnoidal hemorrhages. 20 33. In simple terms, Dr. Lebaquins findings showed that (a) The entrance wound was found on the right temple of the victims head, measuring 1.2 x 1.1 cm; (b) The exit wound was at the back of the victims left ear (post-auricular region), measuring 1.2 by 1.2 cm; (c) There were two contusions found just under the entrance wound, measuring 1.6 x 0.6 cm and 0.9 x 0.8 cm; (d) There was a laceration on the pinna (or rim) of the left ear.
See ANNEX B to the Joint Reply dated January 26, 2006, a transcript of the May 21, 1997 proceedings at the Senate where Dr. Lagonera testified on this point, in particular(De Guzman III-3 11:01 a.m. at 1) 19 Senate Committee Report No. 900 at 11. 20 A copy of the autopsy report prepared by Dr. Lebaquin was attached to the Joint Complaint-Affidavit as ANNEX A(Medico-Legal Report No. M-1203-95) along with a supporting affidavit by Dr. Lebaquin dated May 6, 1997. See also, Committee Report No.900 at 12.
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34. Police Superintendent Marlene M. Santiago, Chief of the Physical Science Division of the PNP Crime Laboratory, conducted paraffin tests on the right side of Ensign Pestaos head and his hands to determine the presence of gunpowder nitrates. The test results were: 1. paraffin cast of his right temporal regionPOSITIVE to the test for gunpowder nitrates. 2. paraffin casts of his right and left handsNegative to the test for gunpowder nitrates..21

THE ISSUES

There are two principal issues that must be resolved in this case: I. II. Was the death of Ensign Phillip Andrew Pestao on September 27, 1995 selfinflicted? Whether or not herein Respondents are criminally liable for his death.

THE ARGUMENTS

I. THE INCONTROVERTIBLE PIECES OF PHYSICAL EVIDENCE POINT TO THE MURDER OF ENSIGN PESTAO, AND NOT TO A SELF-INFLICTED DEATH OR SUICIDE. II. IRRECONCILABLE CONFLICTS IN THE RESPONDENTS TESTIMONIES AND CIRCUMSTANCIAL EVIDENCE POINT TO A CONSPIRACY ONE IN WHICH ALL OF THE RESPONDENTS ARE EVIDENTLY PART OF. III. THE RESPONDENTS HAVE A MOTIVE TO KILL ENSIGN PESTAO: DRUGS, GUNS AND ILLEGAL LUMBER.

See the Chemistry Report No. C-439-95 dated September 28, 1995, and attached to the Joint ComplaintAffidavit as ANNEX D. See also Committee Report No.900 at 12.

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THE DISCUSSION

I. THE

INCONTROVERTIBLE PIECES OF PHYSICAL EVIDENCE POINT TO THE MURDER OF ENSIGN PESTAO, AND NOT TO A SELF-INFLICTED DEATH OR SUICIDE.

35. Perhaps, not since the assassination of Sen. Benigno C. Aquino in 1983 has there been a case subjected to so much legal and forensic scrutiny as the death of Ensign Phillip Andrew Pestao in the early morning of September 27, 1995 onboard the BRP Bacolod City. 36. Arguably, thus far, the most comprehensive and thorough of the investigations were conducted by the Philippines Senate, through the joint efforts of the Committees on Justice and Human Rights and National Defense and Security. Eight hearings and an ocular inspection took place, covering all possible angles and involving a wealth of evidence, such that, as the ensuing Committee Report No. 900 issued by the Committees would put it, [a]side from testimonial evidence, the voluminous documentary and real evidence were presented to and considered by the Committee, including, among other [things], memoranda and all annexes submitted by the Philippine Navy, the Pestao family and medico-legal experts; investigation report and the annexes thereto submitted by the Philippine National Police Criminal Investigation Group, Criminal Investigation and Detective Office; affidavits executed by the officers and crewmen of the BRP Bacolod City; affidavits executed by the family members, friends and the fiance of the deceased; autopsy report; photographs of the body of the deceased; a .45 caliber pistol, slug, empty shell, alleged suicide note and other objects found at the scene of the incident; video footage of the same submitted by the Philippine Navy; zoomed-in clippings of specific portions of said video footage; transcript of Congressional hearings; lumber cargo documents; comparison charts and blown-up photos of the alleged suicide note; questioned document report; handwriting identification report; unusual incident and pre-trial investigation reports; behavioral pattern report; progress reports; physical science division report; copes of reports obtained by Sunlife Assurance Company of Canada relative to the insurance claim filed on Pestaos death; details of activities and missions of the BRP Bacolod City; sketches of the stateroom of the deceased and blue print of BRP Bacolod City; sworn complaint of Ms. Joanna Yasay; results of ballistic examination and paraffin tests.22

22

Committee Report No. 900 at 2-3.

37. Indeed, the first part of this Position Paper extensively references the joint Committee Report that issued from the legislative investigation. It is necessary to go over the main points of the said Report, if only to answer the continuing claims by Respondents that the victims death was nothing more than an unfortunate case of someone who took his own life for still unclear reasons. 38. In fact, then Ombudsman Aniano Desierto has so much as agreed with the findings of Committee Report No. 900; in his March 28, 2000 Resolution, he conceded to the findings of the Senate legislative investigations that the victim was indeed murdered, albeit the then Chief Ombudsman mistakenly concluded that the conduct of further investigation is no longer warranted as it would only be a waste of time, considering that the physical evidence, according to him, had been tampered with, and not to mention the lapse of time. 39. Subsequent sections of this Position Paper will belie his conclusion, as new pieces of evidence have surfaced allowing the positive identification of those who conspired to kill Ensign Phillip Andrew Pestao. 40. What is presented here has already been extensively discussed by Committee Report No. 900. This Position Paper will not attempt to repeat every detail of the Resolutions finding but will only present its key findings. Where appropriate, reference will also be made to evidence already submitted before this Honorable Office that support the discussion of said Resolution on the key points discussed.

What the autopsy report reveals

A. The presence of injuries other than the bullet wound. 41. The autopsy conducted by Dr. Owen J. Lebaquin of the PNP Crime Laboratory Service showed two contusions on the officers right temple and a laceration on his left ear. A copy of the autopsy report prepared by Dr. Lebaquin was attached to the Joint Complaint-Affidavit as ANNEX A, along with a supporting affidavit by Dr. Lebaquin dated May 6, 1997. 42. A contusion the effusion of blood into the tissues underneath the skin on account of the rupture of blood vessels caused by the application of blunt force or violence raises questions about whether the victim indeed kill himself. 43. Committee Report No. 900 considered two explanations for these other injuries: (1) the possibility that the contusions on the right temple was caused by an alleged stabilizer installed in the gun and (2) the possibility that the lacerated pinna was the result of the victims head hitting the immediately adjacent wall after he shot himself. 44. Expert testimony from Mr. Wayne Hill Sr., an American pioneer in crime scene reconstruction, dismisses both. In the first case, the contusion on the right temple could not have been the result of a so-called stabilizer for the simple reason that as the bullet hits the target, the gun moves backward while the target is pushed away from the gun. In other words, the laws of physics simply does not support 10

the theory that the deceased could have shot himself first and the have had the gun come back and hit him.23 In the very first, place, the theory of an abrasion collar caused by the stabilizer is premised on a close-contact fire,24 which the autopsy does not show, as it in fact indicates that the gun was fired from a distance beyond 36 inches.25 45. In the second case, a laceration - defined as a tear of the skin and the underlying tissues due to forcible contact with a blunt instrument, and may be caused by a hit with a piece of wood, iron bar, fist blow, stone, butt of firearm, or other objects without sharp edges - was found on the pinna of the victims left ear, measuring 1 by .04 cm. 46. The location of the wound rules out the possibility that it was caused by the exiting bullet, which had different pathway. Too, the existence and the location of the laceration could not have been produced by the victim shooting himself from any conceivable location. 47. Moreover, the nature of the wound itself means that it could only have been caused by the impact of a hard and blunt object. Experts consulted by the Senate opined that there are three possibilities here: (1) the deceased could have hit himself first on the left ear; (2) a third person could have hit the deceased on the left ear; and (3) deceased could have hit his head against a hard wall with a blunt surface hitting his left ear.26 Their considered opinion: [It] is inconceivable that deceased would hit himself first with a gun on his left ear producing the laceration before shooting himself nor is it possible that his head hit the immediately adjacent wall and produced[d] the laceration on impact. In case of the latter, a stain of blood would have been discovered on the wall immediately adjacent to the lacerated part of the deceaseds ear. A copy of Mr. Hills affidavit submitted to the joint Senate committee investigations was attached as ANNEX H to the Joint Reply-Affidavit dated January 11, 2006/ 48. The memorandum by Dr. Dario Gajardo is likewise highly illuminating here: It would not be difficult to imagine, in case of suicide, that the edges of the muzzle of the gun could have produced the contusion directly on the tissues immediately surrounding the entry wound and another one immediately adjacent to the entry wound as being possibly caused by a stabilizer (?) of the gun, if any. This is of course considering that the gun in question is that of a .45 caliber pistol. But what could never be explained is the presence of another contusion. It must be impressed that contusion is a sign of
Committee Report No. 900, citing the testimony of American forensic expert Wayne Hill, Sr. A.A.S., BCFE, FACFE, VSM, at 15. It should be noted that the presence of a stabilizer on the alleged death gun is also disputed. 24 Id. at 15. 25 Id. at 20. 26 Id. at 18, citing Dr. Ernesto Gimenez, Dr. Dario Gajardo and Dr. Bu Castro, Memorandum on the Medico-Legal Findings.
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life, meaning, the victim suffered the contusion when he was alive. Could it be that the other contusion was inflicted on the affected area by the victim himself? Or did the head of the deceased hit a hard wall after the shot? It would seem inconceivable to imagine a person hitting his head first with a gun before shooting himself, The only possible deduction that can be made is that somebody could have hit the deceaseds right temple before the fatal shot.27 B. The characteristics of the gunshot wound of entry. a. Oval shape of the entry wound 49. In contact-fire suicide cases, the shape of the entry wound nearly resembles that of the size and the shape of the bullet slug coming from the gun. However, the undisputed finding of two medico-legal officers, namely, Dr. Owen Lebaquin and Dr. Manuel Lagonera of the Western Police District, is that the shape of the entry wound was oval.28 50. Committee Report No. 900 thus notes: This undisputed finding of both medico-legal officers.is crucial for two reasons: first, it indicates that the direction of the bullet path from the muzzle of the gun to the entry wound is not directly perpendicular to the head but oblique or diagonal; and second, and more important, it establishes that the wound was not due to a close contact fire.29 b. Absence of tattooing, smudging and singeing on entry wound. 51. Based on the autopsy report stating that no tattooing, smudging, or singeing on the entry wound was found, and Dr. Lebaquins own repeated assertion in the joint committee hearings that such was indeed the case, the victim could not been shot at close range, or through contact fire or from a distance of between 24 and 36 inches. Committee Report No. 900 notes the materiality of the autopsy report on this point, as a smudge is one of the by-products of the complete combustion of gunpowder and other elements with the propellant, and the presence of smudging at the entrance wound points to a near shot. Meanwhile, the unburned, burning and partially burned power grains, combined with graphite which come out of the muzzle, leaves the gun barrel with appreciable velocity as it is relatively heavier than smoke; in close range fire, its is responsible for the production of tattooing (or stippling or peppering) around the gunshot wound of entrance. In close range, the powder grains shoot through the dermal and epidermal layers of the skin and may cause hemorrhage in deeper tissue, which cannot be removed by ordinary wiping. This phenomenon is observable around the entrance wound where the gun was fired from a distance of up to 24 inches, taking into consideration variations resulting from the type of the gun used.30
27

Committee Report No. 900 at 17, quoting Dr. Dario Gajardo, A Review of the Autopsy Report and Related Data. 28 Id. at 18. 29 Id. at 18. 30 Id. at 20, citing Pedro P. Solis, M.D. Legal Medicine.

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52. Hence, taking these physical facts and considering the trajectory taken by the bullet in question, which was posteriorwards, downwards and to the left, it would have been extremely awkward for the deceased to have shot himself with the gun at least two feet from his head, which is not how someone who intends to shoot himself on the head would do.31 53. This scientific observation likewise demolishes the theory that the smudging, tattooing or singeing may have been removed by hosing the wound down with water, as in the case of contract fire, the gunpowder residue is embedded in the skin so that it could not be washed away. 32 Attached as ANNEX B to the Joint Reply dated January 26, 2006 is a transcript of the May 21, 1997 proceedings at the Senate where experts consulted by the Senate testified that no amount of washing could remove such smudging, tattooing or singeing. What other pieces of physical evidence reveal C. The photographs and video footage of the slain naval officers stateroom. a. The absence of blood and tissue spatters. 54. A .45 caliber pistol was allegedly used by the victim to end his own life. The powerful handgun with a bullet nearly half an inch in diameter packs a deadly punch and in a case where the bullet in question penetrates one part of the head and exits through another, it should have emitted so much blood, not to mention brain tissues and skull fragments. Assuming that the victim used his right hand to shoot himself, the force of the explosion would have splattered these on his hand, right and left shoulders, on his chest, and onto the wall of the cabin to his left, which was only a feet away from where he was supposed to have sat as he ended his life. Experts summoned by the Senate to testify affirm that this should have been the case here; the victims classmates, who were among the first to enter the room, likewise testified to the absence of spatters where these should have been seen. 55. Committee Report No. 900 pointedly observed thus: The clear absence of blood spatters, bone fragments or other human tissues on the wall in Pestaos stateroom is a physical evidence more eloquent than a hundred witnesses. As it is contrary to natural or physical law that even a self-inflicted gunshot wound on a persons head in a small room measuring 9 X 10 ft. will not result in the absence of blood spatters or human tissues on the wall, the conclusion is inescapable that the gunshot wound that killed Pestao was not inflicted on him while he was not in his stateroom.s 33

31 32

Committee Report No. 900 at 21. Id.. 33 Id. at 22.

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b. The blood smear on the wall 56. This observation was further buttressed by the presence of a smear of blood on the wall that, according to expert testimony, could possibly have resulted from a bloodied head, one that was soaked in blood before it hit the wall. An American forensic expert, Wayne Hill, who testified before the Senate, said that the solid swipe of blood seen in a video clip taken of the stateroom by authorities could not be explained by someone having momentarily laid the victim such that his hair was soaked in his own blood, and then that someone thereafter moved the remains of the victim to his bed where he was later found. This thus ruled out the possibility that the victim simply bumped his head into the wall shortly after shooting himself. 34 c. The marks of blood on the victims nostrils and blood pattern studies 57. More photographs and video clips taken by authorities of the victim and his stateroom showed blood around his nostrils that flowed up along the nose over the crest to the eyebrows. According to the same expert testimony, this indicates that the victim was raised up from its position for the preceding portion of this blood flow and rotated towards his left at this point. This theory is supported by the following facts: (1) the blood transfers (smudges) on the victims left cheek, which are not associated with any cheek wounds, abrasions, or other potential sources of direct bleeding, (2) the larger blood stain on the left shoulder of Pestaos T-shirt which was not in contact with any of the pooled blood on the bedspread and pillow, and (3) the small half circle of absorbed serous (blood liquids) fluid stains on the left sleeve edge of his shirt, which was not likewise in contact with any of the pooled blood.35 58. Certainly, Mr. Hill observed, the victim could not have shot himself inflicting an instantly incapacitating wound and then tossed and turned like a restless sleeper to create these bleeding and blood stain anomalies.36 59. Commenting on the Navys theory that the rocking and swaying of the ship as it approached Manila Bay could have caused the bleeding and blood stain anomalies, the Report said it simply could not explain adequately (1) the blood transfers on the victims left cheek, which are not associated with any wound or direct source of bleeding, (2) the larger blood stain on the left shoulder of his tshirt, and (3) the small half circle of absorbed serous fluid stains on the left sleeve edge of his shirt, both of which were not in contact with any of the pooled blood on the bedspread and pillow circumstances that, the Committee said, was more consistent with the theory that these anomalies were confined to the victims body when it was raised up from its original position, momentarily laid such that his hair was soaked in his own blood, and then laid on the bed to make it appear the he had shot himself there.37

34 35

Committee Report No. 900 at 22-23. Id. at 23. See also ANNEX H of the Joint Reply-Affidavit dated January 11, 2006. 36 Id. 37 Id.

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d. The presence of blood on the bed, on the pillow and on the floor. 60. Too, in video clips and photographs of the stateroom, blood in different amounts on the left side of the victims body on the bed, on the floor near the closet and the entrance door could be seen. There were also splotches of blood on top of the pillow, and individual and separated areas of blood pools or stains on the bed and the pillow.38 61. These scattered incidences of blood on the pillow were suspicious, considering that it is simply impossible for the blood to crawl up from the bed to the pillow on their own and defy the laws of gravity. The American forensic expert Mr. Wayne Hill noted that the same could be said of the individual and separate pools of blood that ran up over the creases in the blanket found in his bed. As Dr. Gajardo said in his Review of the Autopsy Report and Related Data: A careful study of the two locations of the amounts of blood found in the room will lead to a deduction that the one on the floor is substantially more than that on the bed on the left side of the deceased just near or adjacent the exit wound. This is significant considering that the death of the victim is instantaneous and immediate, that is, there is sudden cessation of the heart action and circulation so that the loss of pressure by the pumping of the heart is also sudden. Also, blood is viscous and begins to clot or solidifies in one to three minutes preventing it from flowing farther. From this premise, blood should be found therefore in larger volume near the deceaseds exit wound on the bed on his left side and not vice-versa. Further, blood coming out from the exit wound could not travel by flow farther from the exit wound considering that the clotting mechanism of blood after the instantaneous death sets in39[emphasis in the original]. e. The photograph showing moved finger.

62. Pictures taken by the Western Police District and LT Colico showed a gaping discrepancy as to the position of the victims left hand. The entry fingers were more open and spread out on his leg in the WPD pictures, whereas on the pictures taken by LT Colico, his fingers appeared slightly curled back, and the index finger partially uncurled; another picture showed his fingers fully rolled back and the index finger was now pointing out, as if pointing at somebody. As dead people do not move, the inescapable conclusion is that somebody moved the naval officers fingers. 40

38 39

Committee Report No. 900 at 24. Quoted in id. at 25. 40 Id. at 25-26.

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f. The bullet mark or hole on the wall. 63. To fortify the suicide story, whoever killed the Navy officer fabricated a bullet mark or dent on the steel wall about 2.5 inches away from the stateroom cabinet and some 47 inches from the floor. The location of the bullet mark of hole, however does not match with the trajectory of the bullet as it tore through the victims head. 64. The PNP Crime Laboratory Report dated May 16, 1997 stated that the bullet mark was caused by a bullet hurtling upward: Macro-physical examination conducted on the above-stated cabin revealed the presence of a bullet indentation mark with an approximate diameter of 1.2 X 1.7 found on the wall about 2.54 cm. Distance from the left side of the cabinet and 119.4 cm. height from the floor directed slight upward. Bullet indentation mark was found on the wall of the abovestated cabin directly slightly upward. [emphasis supplied].41 65. The Autopsy Report, however said the trajectory of the bullet was directed posteriorwards, downwards and to the left.42 66. Correlating the two findings, Committee Report No. 900 thus said: it would appear that the bullet assumed a downward trajectory but after passing through Pestaos head, it assumed an upward direction, hit the wall, and produced the contested bullet mark approximately 47 inches from the floor. 43 This extrapolation is of course, highly improbable. Committee Report No. 900 noted that assuming that the victim shot himself at the right temple as he sat on the bed, the bullet mark, taking into account the downward trajectory of the bullet, would have been found lower than 47 inches. If there ever was such a bullet mark, it should be located in such place that is much lower than the exit wound and at the end of trajectory drawn from the entry wound connecting the exit wound. 44 67. Another important point relevant to the discussion is whether the bullet mark was in fact, already existent in the morning of September 27, 2005; Committee Report No. 900 said otherwise, bolstering the theory that the room where the officer was found was an elaborately staged suicide scene. For this Committee Report No. 900 notes that the WPD, in a report entitled Advance Information, written by P03 Dennis Javier, said that a bullet hole was observed at the wall between the closet and the main door. 68. Committee Report No. 900 however notes that five witnesses Lt. JG Roland Allan Bolado, Ensign Mark Antonio, Ensign Raul Regis, Ensign Eustacio Nimrod Enriquez and Ensign Charle Q. Rances all classmates of the slain officer, who
Committee Report No. 900 at 26. Id. 43 Id. at 26. 44 Id. at 24.
42 41

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trooped to the ship following news of his death, searched in vain for such a bullet mark on that fateful morning.45 Copies of the affidavits of the officers were attached to the Joint Complaint-Affidavit as ANNEX F (Ensign Antonio, November 25, 1995 Affidavit); ANNEX G ( Ensign Enriquez, March 25, 1996 affidavit); ANNEX H (Ensign Regis, May 1996 Affidavit); ANNEX I (Ensign Charlie Rances, April 9, 1996 Affidavit); and ANNEX K ( LT JG Bolado, November 25, 1995 Affidavit). A sixth witness, Ensign Erlyn Reyes, also executed an affidavit dated March 25, 1996 making the same declaration. His affidavit was attached as ANNEX J to the Joint Complaint-Affidavit. 69. Moreover, neither LT. Colico nor HM2 Aquino noticed or saw the bullet mark on the wall. Thus, the Joint Committees observed that: Firstly, the photographs taken by the WPD in the morning of Septembe 27, 2005 namely, photos of (a) the body, (b) the alleged gun, (c) the alleged suicide note, (d) the alleged slug, (e) the cabin door outside Pestaos stateroom showing an apparent bullet mark did not show or include the alleged bullet mark on the interior wall of Pestaos stateroom. We note that the September 27, WPD photos did not include or show a bullet mark on the interior of the wall of Pestaos room, but showed a bullet mark near the cabin door outside Pestaos room.46 If indeed an alleged bullet mark was observed on the wall of Pestaos room in the morning of September 27, 1995, it would have been photographed by the WPD on that same day considering its importance as evidence. And what happened to the bullet mark near the cabin door outside Pestaos room which the WPD photographed in the morning of September 27, 1995? Is said bullet mark still existent? If not, why and how did it disappear? Secondly, while Javier claimed in his report that a bullet mark was observed on the wall between the closet and the main door of the cabin, surprisingly he did not mention any blue work clothes hanging on that same wall, which, according to Lopez, aptly covered the alleged bullet mark (Advance Information dated September 28, 1995; Sworn statement of Lt. JG Reynaldo Lopez dated July 9, 1997, Camp Crame, Quezon City). If the WPD investigators noticed the partially concealed bullet mark (granting that both Lopez and Javier are telling the truth), the investigators must have also noticed the blue work clothes partially concealing it. Thus the blue work clothes must also have been mentioned in the report (emphasis in the original).47 Indeed, another photograph was taken under the auspices of Navy authorities between two and three months after the killing and this time, it showed a bullet hole on the wall of the cabin. This is evidently another fabrication, presented to the Senate at the apparent behest of certain occupants of certain high offices of the
45 46

Committee Report No.900 at 33-34. A copy of the said photo was attached as ANNEX M to the Joint Complaint-Affidavit. 47 Id. at 34.

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Philippine Navy. A copy was attached to the Joint Complaint-Affidavit as ANNEX L. Three of the slain officers mistahs Ensign Erlyn Reyes, Ensign Ferdinand Abad and Ensign Romulo Vigilancia would subsequently visit the ship on November 30,1995, where they were shown by S2HN Rolando Borromeo, a ship crew, that the bullet hole near the cabin door photograph earlier was no longer there. This was attested to by Ensign Reyes in his affidavit already mentioned above. g. The videotape showing the alleged bullet mark on the wall. 70. To prove the existence of the bullet mark on the wall, then Commander Tirso Danga presented a video taken by Mr. Miguel Baroy, a former video operator of the Philippine Navy, who testified that he videotaped the scene at 8:30 a.m. or some 15 or 20 minutes before the arrival of Bolado and Antonio. In the video, the bullet mark was indeed, not readily noticeable as it was slightly covered by blue work clothes hanging on the same wall. Baroy claimed the video tape was uncut and had a running time of two to three minutes. Later, he changed his mind and claimed he made four or five cuts in the video. 71. However, Philippine Navy authorities did not count on the wristwatch the officer was wearing at the time. On closer inspection of the earlier portions of the video, the watched showed the time at 8:58 a.m. Later, the timepiece registered the time at 9:08 a.m. 72. The Joint Committees noticed only one cut immediately before the camera was focused on the blue work clothes partly concealing a bullet mark on the wall. Committee Report No. 900 observed thus: The existence of this gap or cut immediately before the camera focused on the blue work clothes partly concealing the bullet mark is very crucial as it puts into serious doubt the authenticity of the video tape. While the rest of the footage may be the actual representation of the scene as videotaped by Baroy on September 27, 2005, the cut immediately before the camera focused on the blue work clothes reinforces the impression that the portion showing the blue work clothes hanging on the wall and the bullet mark was added to buttress a claim that the bullet mark was already on the wall of Pestaos cabin in the morning of September 27, 2005 [emphasis in the original].48 73. Moreover, the absence of blood stains on the work clothes only strengthens the theory that the officer did not sustain the gunshot wound inside his stateroom. Considering the size of the room and the distance between his body and the wall on which the work clothes were hanging supposedly at the time he killed himself, there would have been blood spatters and traces of brain and head tissues on them. But there was none.49 If the work clothes were already there when the victim supposedly shot himself in the head, it would have been splattered all over with blood human tissues. The work clothes were clearly placed there in the
48 49

Committee Report No. 900 at 36. Id.

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aftermath of the killing of the victim by an elaborate conspiracy to murder him, to make it appear that he had shot himself. h. The alleged fatal gun. 74. There is no dispute that the alleged fatal gun one Colt 1911 Caliber .45 pistol, along with a magazine, a slug and an empty shell, five live bullets was discovered on the floor in front of the victims body and between his feet. 75. But other than that, the location in which it was found as well as its provenance are under question. The alleged location in which it was found supports the theory that the suicide scene was staged by an elaborate conspiracy. Committee Report No. 900 states that assuming that the officer committed suicide using a .45 caliber pistol pressed almost perpendicular to his right temple, taking into account the downward trajectory of the bullet, the pistol would have been thrown to his right side, considering the so-called kick resulting from the explosion. It should have been discovered on the lateral side and not the front of the deceased, or at least on his right side, on the bed, and never directly in front of him where the gun was actually found. 50 76. Citing the testimony of a leading Filipino ballistics expert, Dean Panganiban, as it is impossible for a person, right after shooting himself on the head, to then purposely place the gun on the floor in front of his body before lying on his bed, the position of the alleged firearm and magazine used in the shooting found on the floor and in between victims foot, with detached magazine when recovered, is a sign of intentional positioning [emphasis in the original].51 77. Earlier, the theory that the gun had a stabilizer was as well discussed and seriously doubted, in relation to the other injuries the victim sustained, especially the contusions on the right temple that he suffered. Moreover, one of the Respondents himself, LT.Alfrederick Angeles Alba, PN, categorically stated that what he saw at the crime scene was a .45 caliber pistol that did not have any stabilizer. Questions and Answers, No. 31 , LT Albas May 22, 1997 statement to the CIDG, ANNEX X of the Joint Complaint-Affidavit.) 78. The other important point is that the alleged fatal gun was supposed to have been borrowed by the victim. Committee Report No. 900 casts doubt on this theory, considering that the officer had his own military-issued pistol, as well as his own personal licensed pistol.52 79. Committee Report No. 900 also noted the suspicious conduct of police investigators who did not subject the gun to fingerprint tests, thus making it difficult to determine whether or not the gun recovered from the death scene was the fatal gun.53 Moreover, it said that LT. Colicos act of wiping the gun with a piece of cloth, thus probably removing the fingerprints on it, was inexcusable. In fact, it was tampering with evidence.54
50 51

Committee Report No. 900 at 28-29. Id. at 29. 52 at 29. 53 Id at 36. 54 Id. at 37.

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i. The slug.

80. Citing many experts, Committee Report No. 900 observes that it is not possible that slug recovered in the stateroom of the victim was the same slug that tore through the victims skull, as this one was only slightly deformed. For one, it said, it is not possible for a slug to pass through two very hard surfaces of the human skull, hit a steel wall and not be heavily deformed. 55 81. In addition, foreign matter, which appear to be cotton fibers, were found on the nose of the slug in question, leading the Committee Report No. 900 to note an experts observation that, The alleged bullet dent/hole where this bullet allegedly hitwas made of iron sheet covered with wall paper which does not have the characteristics of a cotton fiber. Definitely, if this bullet is assumed to have penetrated a head, it will not have any cotton adhering on its nose.56 j. The empty shell. 82. Another indication that the suicide scene was staged is the location of the empty shell on the bed, as experts have testified before the Senate. Committee Report No. 900 states thus: If Pestao did shoot himself with a .45 pistol pressed against his right temple, the ejection chamber would face the same direction faced by him. When the gun is discharged, the spent shell would have been ejected in front of Pestao, landing on the floor or on top of the working desk. Considering the fact that the ejected shell from a .45 caliber pistol will fly to the right of the gun rearward at the distance of about six feet, there is no way the spent shell could have landed on the spot where it reportedly was found.57 Thus, taking into account the location of the bullet mark on the wall and the possible firing position of the firearm, where the spent shell was found is inconsistent with the possibility that the officer shot himself with a .45 caliber pistol pressed against his right temple.58

In addition, LT JG Roland Allan Bolado, one of the first of the victims friends to board the BRP Bacolod City after news of his death was relayed by radio to other Navy units, has attested that the empty shell and the slug that Navy authorities later said t were found by police investigators at the crime scene were not there when he entered the victims stateroom ahead of the investigators to see for himself what happened to Ensign Pestao. He said in para. 20 of his affidavit already mentioned above:
Committee Report No.900 at 30. Id. at 31, citing Dean Panganibans testimony. 57 Id. 58 Id. at 31-32.
56 55

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I saw a pistol between Phillips feet. It was old model .45 caliber gun, the type issued for gangway guards. The guns magazine had been removed and was placed beside the gun. The bullets could be seen through the space in the magazine and I counted 4 live ammos (a fully loaded magazine should contain 7 bullets). Looking further I saw a live ammo on the deck beside some shoes. There was a spent shell on the bed near a pillow towards Phillips right. A gun holster was on the floor at the left side of Phillips feet. He also provided a sketch of where he found the unspent ammunition before it was apparently substituted by a slightly deformed slug and a spent shell by the conspirators to make it appear that the victim had died of a suicide. A copy of the sketch was attached as ANNEX K-1 to the Joint Complaint-Affidavit. k. The alleged suicide note. 83. The piece de resistance to the suicide theory is an alleged suicide note that, Committee Report No. 900 noted, was undated and showed signs of having been previously folded.59 It was supposed to have been found in the victims room on the day of his death, and read: To my parents, brothers and sisters, I am very sorry. Hindi ko na kaya. Dont pity me. I am very sorry for everything. I do not know what to do anymore. Its a very big burden for me to handle all of this. I love you very much. I am sorry. Love, Phillip60

84. Yet it had tell-tale signs of forgery, as the victims loved ones themselves insisted. His father Felipe was baffled by the impersonal style in which it was written, when he knew his son to be affectionate in his letters, often addressing him as Papa and his mother as Mommy in his letters.61 It was also strange that the letter addressed his siblings in the generic terms brothers and sisters, as if he did not know who their names were. Moreover, his fiance Joan Doxi did not even merit mention in the letter, when they were scheduled to get married in the last week of January 2006. Committee Report No. 900 noted that in the last three months prior to his death, the victim had written her more than 20 letters; at the very least, he would have prepared a separate suicide note addressed to her to explain himself, considering their impending marriage.62 As the Committee Report No. 900 said:

59 60

Committee Report No.900 at 38. Id. at38. 61 Id. at 39-40. 62 Id. at 40.

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That the deceased who used to address his parents Papa and Mommy, who was presumed to know the names of his brothers and sisters, and who wrote his fiance more than 20 letters in the span of three months would now write a suicide note addressed To my parents, brothers and sisters and fail to mention his fiance, is most unusual, if not downright suspicious.63 85. The Joint Committees also considered expert opinion from handwriting experts of the National Bureau of Investigation (NBI) and the Philippine National Police Crime Laboratory Service. In their join Resolution however, they gave credence to the testimony of independent Questioned Document Examiner, Col. Pedro Elvas Jr. (retired), who analyzed the questioned signature and the note and the forty-five (45) standard specimen signatures written by the deceased from 1989 to August 1995. Col. Elvas found at least 17 significant divergences in terms of handwriting movement, stroke structures, speed, habits and other individual and personal handwriting characteristics.64 The conclusion: the questioned signature and the standard specimen signatures of the victim were written by two different persons; thus, the questioned signature was not written by Phillip Pestao. The divergences, so said Committee Report No. 900, were so obvious and apparent that they cannot be ignored.65

l. The case for suicide.

86. Respondents, desperate to find support to their suicide theory, have resorted to a number of highly improbable if implausible explanations. One interesting theory they advance is that the fallen officer had been exhibiting suicidal tendencies and cite one incident when he suffered a cut on his wrist as proof. It was obviously an accidental cut, made while he was turning a softdrink can into an ashtray, and relayed by the victim himself to his parents in the evening of September 25, 1995, when he was asked about it. That the wound was accidental and too superficial to have been sustained after a suicide attempt is borne out by the Medical Certificate issued by the physician who attended to him after the accidental cut happened in Zamboanga City, attached as ANNEX-E of the Joint-Reply dated January 26, 2006, as well as by the affidavit of his classmate, Ensign Robert Bosch, who was with him at that time, attached as ANNEX E-1 to the Joint-Reply dated January 26, 2006. 87. Moreover, an American expert in behavioral science, Ron Rice, who is learned in the analysis of human behavioral tendencies as exhibited in a persons handwriting, described the victim, after a careful study of his handwriting during the relevant period, as having a rational and well controlled state of mind, xxx there [is] no indication or suggestion that Lt. Pestano was experiencing unreasonable stress, anger, confusion, dejection, depression or any other mental/physical trauma that would indicate self-destructive tendencies. A copy of his affidavit submitted to the Senate was attached as ANNEX E-2 to the JointReply dated January 26, 2006.
63 64

Committee Report No.900 at 40.. Id. at 41. 65 Id. at 42. His conclusion was shared by Western Police Districts Senior Inspector Redencion Caimbon, who also conducted her own study of the suicide note. See Id. at 41.

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88. Too, the paraffin test conducted on both of his hands had no negative results, thus indicating that he did not fire a gun at all, as shown by the Chemistry Report No. C-439-95 dated September 28, 1995, and attached to the Joint ComplaintAffidavit as ANNEX D. 89. The ships master, CAPT Ricardo M. Ordoez, even went as far as alleging that the victim was using prohibited drugs, purportedly, as related to him by the now Ensign Alvin Parrone, now deceased. This, the ship captain said, explains why Ensign Pestao was observed by the ship crew on a sleep-walking incident. But Ensign Parrone, as he was dying with cancer, had confessed to the victims parents that it was the ship captain who instructed him to say that the victim was on drugs; the captain himself has at least admitted to visiting Parrone at the hospital although he would not admit to what the victims parents had found out that it was the Philippine Navy that had paid for all his hospital bills until he died of his ailment. This explains why his sisters, who received the money, Constancia and Sarah Parrone, would readily issue signed statements according to the wishes of CAPT Ordoez. 90. In fact, Ensign Parrone had virtually confirmed to the victims parents what the victim divulged to them shortly before he was murdered: that he had discovered a drug-running syndicate on his ship that involved some of his own superiors. Ensign Pestao had confided to his parents that a certain P02 Zosimo Villanueva, a naval intelligence operative, had informed him that LT Colico and LCDR Casis were involved in the syndicate. To confirm this, Ensign Pestao one day tried to slip into LCDR Casiss stateroom while the latter was in Manila. He was however surprised to see Ensign Parrone sleeping on the officers bed, beside a small box that Ensign Pestao said contained a stash of methamphetamine hydrochloride or shabu. 91. Ensign Parrone told the victims parents that he was merely pretending to be asleep and was aware that Ensign Pestao had entered the stateroom. The next day, he reported the matter to the ships captain, who after that, called Ensign Pestao and gave him a dressing down in the presence of LT Roque, LCDR Lopez and LT. Colico. The ship captain, Ensign Parrone said, threatened to give the victim a court martial for the trespass; to extricate himself from the situation, Ensign Pestao came up with the excuse that he was sleepwalking at that time and did not know what he was doing, he told his parents later. It was this incident that Respondents would later on use as proof that the victim was on drugs. 92. The 7-man Ad Hoc Committee of the AFP Inspector General did not give credence to the Respondents allegation that the victim was a drug user, instead praising him as a good and honest ship officer (See the copy of their Report, attached as ANNEX A to the Joint-Reply Affidavit dated January 11, 2006). 93. In fact, one of the victims classmates Ensign Robert Clement Bosch would put it more bluntly: It was also reported that a certain Ens. Parrone claimed that Phillip confided to him that he (Phillip) was taking prohibited drugs. As one of the close friends and classmates of Phillip, I could say that 23

he possessed leadership qualities enough to consider him an epitome of a model soldier and it would be preposterous to say he took illegal drugs. It likewise ridiculous that Phillip would confide his problem on drugs to another officer who is not his classmate instead of confiding the same to anyone of us. There were about eleven of our classmates in the Navy alone assigned to Zamboanga at that time and we regularly had short reunions but no one of us was approached by Phillip about his alleged problem on the use of prohibited drugs. As I earlier stated, Phillip was very close to almost all his classmates. ( See para. 11, ANNEX E-1 to the JointReply dated January 26, 2006. 94. Meanwhile, P02 Villanueva, the enlisted man who passed on to the victim the information about a drug-running syndicate on his ship, was later declared by naval authorities to have been lost at sea in a boat accident in Tawi-Tawi. 95. There is still the matter of the expert witness produced by the Philippine Navy, in the person of Dr. Rachel Fortun who would subsequently write a scholarly piece of her thoughts on the case entitled Death Aboard Ship from a Single Gunshot Wound of the Head: Forensic Issues of the Pestao Case (marked as ANNEX K of LT Colicos Counter-Affidavit) where for the most part she single-handedly commented on all aspects of the case, including those fields where she has no competence to comment. Thus she transformed herself into an all-around expert able to comment on every aspect of a forensic case, beyond the limits of what her field of expertise, pathology, would allow. 96. It is enough to say that in the Senate hearings on the case, Dr. Fortun was repeatedly impeached for her incompetence to testify on a suicide case involving a gunshot wound to the head. Attached as ANNEX F to the Joint Reply Affidavit dated July 27, 2006 is a transcript of the September 3, 1997 hearing of the Joint Committees on Justice and Human Rights and National Defense and Security where Dr. Fortun said, I would admit that when I was in training, of the 100 autopsy cases I did, I only got ten contact handgun wounds on the head at the Medical Examiners Office in Washington State. 97. And, needless to say, the Senate investigations did not give credence to her testimony, after considering all the expert testimony presented as well as all the pieces of available physical evidence 98. The Senate inquirys own findings on the matter strongly contradict the suicide theory, as far as the physical evidence was concerned. The joint inquiry held that for a conclusion that the naval officer died of self-inflicted wounds after shooting himself in his stateroom on Sept. 27, 2005 would require the following absurd scenario: a. Before shooting himself, Pestao hit his own right temple with a blunt instrument, thereby producing the two contusions. b. He also hit himself on the left ear, producing the lacerated wound on the pinna of his left ear.

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c. Despite the obvious discomfort brought about by a manifestly awkward position, he held the gun at least two feet from his head (in view of the oval shape of the entry wound), and the absence of tattooing, smudging and singeing thereon) with his wrist at an acute angle or less than 90 degrees angle (in view of the downward trajectory of the bullet). d. After the gun was fired, the bullet assumed a downward trajectory but after passing through Pestaos head, it assumed an upward direction, hit the wall, and produced the bullet mark on the wall approximately 47 inches from the floor. e. Notwithstanding an instantly incapacitating head injury, Pestao momentarily laid himself on the floor, such that more blood oozed on the floor than on the bed. f. Despite his fatal head injury, Pestao was able to tilt his head such that the blood went up to his eyebrows, and then turned his head, causing the blood flow to be diverted 90 degrees out of the way; his tossing and turning also produced the large blood stain on the left shoulder of his T-shirt, the small half circle of blood stain on the left edge of his shirt, and the individual and separated pools of blood on the bed. g. Despite his fatal head injury, Pestao was able to wipe the blood off the wall of his stateroom such that walls are devoid of blood spatters, bone fragments and human tissues.66 m. The only conclusion that the pieces of evidence support 99. Committee Report No.900 could not but say that Pestao could not have shot himself on the basis of the following pieces of physical evidence: 1. The two contusions on his right temple and the lacerated wound on his left ear were not self-inflicted, as it is contrary to reason that the victim would hit his right temple and his left ear with a blunt instrument before killing himself with a .45 caliber pistol. 2. The laws of physics deny the possibility that two contusions on the right temple of the navy officer were caused by a stabilizer supposed to have been installed in the gun, considering that the power of the blast will push the gun backward as the head of the victim moves to the opposite direction. 3. The oval shape of the entry wound on Pestao s right temple indicates that the trajectory taken by the bullet from the gun muzzle to the entry wound was not directly perpendicular to the head but oblique or diagonal, and that the wound was not due to a close contact fire. 4. The autopsy report shows no shred of evidence tending to give the impression that the gun was fired at close range.
66

Committee Report No. 900 at 43.

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5. Considering the trajectory of the bullet posteriorwards, downwards and to the left, it would be extremely awkward, if not impossible, for the victim to have shot himself with the gun at least two feet from his head. It does not comport with common knowledge and human experience that a person contemplating suicide will, before killing himself, assume a manifestly awkward position, such as a heavily leaning his head towards the right (as demonstrated during the Committee hearing in order to explain the downward trajectory of the bullet and the bullet mark located 47 inches from the floor), or holding the gun at least two feet from his head, with his wrist at an acute angle or less than 90 degree angle. 6. The alleged suicide note was highly suspicious, considering that (1) it was undated, (2) it showed signs of having been folded, (3) it was addressed very impersonally and indifferently, indicating lack of knowledge of the personal way the victim used to address his parents as well as the names of his brothers and sisters.67 100. A scrapbook of key forensic issues earlier submitted to this Honorable Office presents in detail the physical evidence and the key forensic issues discussed in the Senate Resolution, along with the Transcript of Stenographic Notes in the May 21, 2007 hearing at the Senate. The scrapbook and the transcript have been attached as ANNEX C and ANNEX D to the Joint-Reply Affidavit of herein Complaints dated January 26, 2006. 101. The astounding number of pieces of physical evidence discussed above is conclusive of the fact of the murder of Ensign Pestao. No amount of testimonial evidence denying these pieces of evidence can controvert them; as held by the Supreme Court in one case, [w]hen physical evidence runs counter to testimonial evidence, conclusions as to physical evidence must prevail. 68

What the newly-discovered evidence reveals

102. Ships are notorious creatures of habit; this is especially true in the case of a military ship. It follows established routes and procedures, all of which must be taken into account every time it sets out on a mission. Routes are plotted ahead of time. A log is kept of who is doing what and in which station round the clock, according to a detailed manual of procedures. Everyone on board must be accounted for. 103. Officers and personnel have designated duties and roles to play. Other than safety and security, factors of economy are also considered at each mission. For instance, an unplanned deviation from an established route may mean additional time and fuel costs so that it simply is not made, unless there is some compelling reason for it. Indeed, any unjustified failure to do the task as commanded is meted a corresponding sanction according to military rules.

67 68

Committee Report No. 900 at 44. People v. Aguinaldo 316 SCRA 819.(1999).

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104. In other words, so much of institutional history was behind the BRP Bacolod City as it steamed from the Cavite Naval Station to the Philippine Navy Headquarters along Roxas Boulevard on that fateful day that any unusual occurrence involving the ship in the morning of September 27, 2005, when Ensign Pestao died, becomes suspect. For clearly, his death involved an elaborate conspiracy to murder; all the forensic evidence points to that conclusion. Yet it was one that needed a window of opportunity to execute as well as enough time to prepare a death scene that suggests not foul play but suicide in the death of the navy officer. 105. An Investigation Report dated December 19, 1996 of the 7-man Ad Hoc Committee in the Office of the Inspector General of the Armed Forces of the Philippines (ANNEX A of the Joint-Reply Affidavit dated January 11, 2006) sheds new light on the case. This Report has been kept under wraps by top officials of the armed forces; Complainants came across a copy of the Report only sometime in 2006 or some ten years after it was submitted to AFP authorities. The Report rejected the suicide theory advanced by the Philippine Navy and made the following recommendations: i. The TURN OVER of the case records to the NBI for further investigation, and ii. TJAG to conduct PTI against the following personnel: CDR RICARDO ORDONEZ 0-107824 PN LT. RUBEN ROQUE 0-113764 PN ENS JOSELITO COLICO 0-11696 PN SN2 WILHELMINO AQUINO 733122 106. Subsequently, the TIG, AFP, in a disposition dated March 31, 1997, approved and endorsed the recommendation to the Chief of Staff, AFP, emphasizing the circumstantial evidence pointing to the culpability of the same officers for conspiring to the victims murder: i. The ship made a dogleg instead of taking a direct route from Sangley to HPN during the incident date by causing unnecessary travel that day of 27 Sept 95. XXXXX e. Pages were torn from the gangway logbook that would normally show the names of people who got off the ship that day and the mustering list that accounts for the total crew present while cruising. f. There was absence of passenger manifest showing the names of other people on board the ship on that fateful day which could be used as basis in the determination of which as to who should undergo paraffin test to establish who fired and who did not. (ANNEX B of the Joint Reply-Affidavit dated January 11, 2006)

107. None of the above recommendations were carried out. But the findings of the investigative Ad Hoc committee are there for all to see now: the mysterious 27

dogleg route executed by the ship as it sailed from Cavite to Manila Bay in the early morning of September 27, 1995, as para. 44 ( c ) of the Investigation Report would put it. (ANNEX A of the Joint Reply Affidavit dated January 11, 2006). That the ship, with the ships captain at the helm, took that zigzag route was established by the evidence gathered by the 7-Man Ad Hoc Committee of the AFP Inspector General: 37. Xerox of QM Logbook showed that on 27073H Sep 95, the shop was secure from SSD and set steaming watch on course 339 to follow pre-plotted course with all the engines ahead full at 755 RPM. Navigating by CPS. At 800H, 2nd section watch was properly held by 3rd Section on C-049 T from C-339 T. However, the C-339 T is a ban deviation to a direct route of 039 from Sangley Point to YB, HPN (ANNEX A of the Joint-Reply Affidavit dated January 11, 2006. Photocopies of the pertinent pages of Quartermasters Logbook referred to in the Investigation Report has been attached as ANNEXES D and D-1 respectively in the same Joint Reply Affidavit). 108. What it means is that a trip that normally took all of 45 minutes to complete took the BRP Bacolod City almost two hours, according to the calculations of veteran maritime experts engaged by Complainants. (ANNEXES F and F-1 of the Joint Reply-Affidavit dated January 26, 2006). 109. According to records submitted by the ship captain to the Senate, Special Sea Detail was called at 7:05 a.m.; thereafter, the ship sailed for Manila at around 7:27 a.m. and arrived at the HPN at 8:39 a.m. of September 27, 1995. Assuming this submission to be true, it took the ship one hour and 12 minutes to cover that distance, or 32 minutes longer than the usual time it took to do so.69 110. Particularly telling is the fact that it took the ship captain 45 minutes to traverse the last 50-yard leg of the zig-zag route to the HPN when it can well be covered for only 10 minutes with a ship like the BRP Bacolod City. Clearly, the ship captain resorted to the unusual route deviation to buy time for his fellow conspirators to stage the suicide scene at the victims stateroom.

111. In fact, experts who testified before the Senate are agreed that the victim had already been dead between three to six hours by the time his death was supposed to have been discovered at around 8:00 a.m. of September 27, 1995. A copy of the transcript of stenographic notes of that particular hearing when this was discussed by the same experts on May 15, 1997 before the Committee on National Defense was attached as ANNEX E to the Joint Reply-Affidavit dated January 11, 2006. From this scientific inference, based on the fact that rigor mortis had already set in when his body was purportedly discovered, the victim may have been shot between 6:00 and 6: 30 a.m. and the conspirators needed time to set up the suicide scenario, hence the necessity for the dog-leg. More on this point in the Position Papers discussion below of the role in the conspiracy of one of the Respondents, LT Alfrederick Angeles Alba, who admitted in a sworn statement that the victims body was actually found at around 7:40 a.m. or some
69

Committee Report No.900 at 4, 8.

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40 minutes after the ship left Cavite. Yet as will be shown below, his fellow conspirators apparently wanted to make it appear that Ensign Pestao shot himself at around 8:00 a.m. 112. The dog-leg taken by the ship, albeit belatedly discovered, is yet the strongest piece of circumstantial evidence pointing to the common agreement and/or plan among the herein Respondents to commit murder. 113. The other findings of the Ad Hoc Committee also raises pertinent questions. Why were the pages from the gangway logbook that would normally show the names of people who got off the ship that day and from the mustering list that accounts for the total crew present while cruising torn? Why was there no passenger manifest of people onboard that day? 114. Evidently, these pieces of evidence crucial to the determination of the identity of the triggerman in the murder of the navy officer were disposed of as part of a grand cover-up committed by the grand conspiracy.

II. IRRECONCILABLE CONFLICTS RESPONDENTS TESTIMONIES

IN THE AND CIRCUMSTANCIAL EVIDENCE POINT TO A COVERUP AND A CONSPIRACY ONE IN WHICH ALL OF THE RESPONDENTS ARE EVIDENTLY PART OF.

CAPT Ricardo Martinez Ordoez and LT SG Ruben Bolasoc Roques story 115. The ship captain and his Executive Officer have closely intertwined narratives; for this reason their story will be treated in one section. 116. The actuations of CAPT Ordoez and LT SG Roque during that fateful trip of the BRP Bacolod City betray their very own complicity in the murder. Their complicity is made more evident by their contradicting statements on the death of Ensign Pestao. 117. But for now, CAPT Ordoezs involvement:

118. First, his reaction to the news of the officers death does not comport with ordinary human experience, considering that he was the ship captain who was supposed to be in command of the entire vessel. 119. His storyline as stated in his Counter-Affidavit is that when he heard the report of Ensign Pestanos death, his focus was on berthing the ship because at that point, he was maneuvering it just a few hundred yards away from the HPN pier. 29

120. Yet in his earlier statement to the PNP-CIDG (ANNEX A to the Joint Complaint-Affidavit), specifically, in his answer to Question No. 37, he said claimed that as the ship was only about 50 yards from the entrance to the Yacht basin, he heard the news in the PA system that the hospital corpsman was being summoned to the slain officers stateroom. Later his Executive Officer informed him about the alleged suicide. Though stunned, he concentrated on safely bringing the ship to its berth at the pier. 121. Then against all logic attendant to a ship captains duties and responsibilities over matters pertaining to his ship, as soon as the ship docked at the pier, he supposedly went ashore to report the matter directly to his superiors at HPN, without even confirming whether or not the report was true. His absence in the victims stateroom in those critical moments did not escape the notice of some of the PMA mistahs of the victim, who rushed to the ship after news broke out about Ensign Pestaos death. The affidavit of Ensign Mark Raymund Antonio dated November 25, 1995, attached as ANNEX F of the Joint ComplaintAffidavit, attested to this strange fact. Attention is directed in particular to para. 17 of the same, where Ensign Antonio stated that at the time the ships crew and officers were all on board except for the CO, the Executive Officer and Ensign Alvin F. Parrone. 122. Evidently, this was not the normal reaction of a person in authority on the ship its captain no less; evidently, long before the announcement of the officers death broke through the ships PA system, he already knew about it, either as a participant to the killing, or if he were not the mastermind, as a consenting conspirator. This fact is brought to sharper focus by this Position Papers discussion on the second point below, which details how he as captain deliberately delayed the arrival of the ship at the HPN from Sangley point:

123. Second, as master at the helm of the ship, he inexplicably delayed by the journey of the ship from Sangley Point to the Navy Headquarters in Manila a trip that normally takes 45 minutes for almost two hours by taking a zigzag route. The delay was obviously meant to give the conspirator time to set up the slain officers stateroom and make it appear that Ensign Pestao had committed a suicide. 124. The dog-leg he resorted to as ship captain was established by the sevenmember Ad Hoc investigating committee formed by the Office of the Inspector General of the Armed Forces of the Philippines (ANNEX A of Complainants January 9, 2006-Joint Reply Affidavit).

125.

Para. 44(c) of the Report submitted by the Ad Hoc Committee put it thus: The unusual dogleg route of the ship form Sangley to HPN on 27 Sept 95. This operation could be viewed as mysterious inasmuch as it might have a bearing on the incident.

126. A few paragraphs back, at para. 37, the Ad Hoc Committee noted that the dogleg was a deviation from the ships pre-plotted route: 30

Xerox of QM logbook showed that on 27073H Sep 95, the ship was secure from SSD and set steaming watch on course 339 to follow pre-plotted course with all engines ahead full at 755 RPM, navigating by CPS. At 0800, 2nd section watch was properly held by 3rd section on C-049 T from C-339T is a ban deviation to a direct route of 039 from Sangley Point to YB, HPN. 127. CAPT Ordoez could only say in his Counter-Affidavit that the finding of the Ad Hoc Committee was a concoction of an incompetent navigator who is ignorant of simple marine piloting and safe navigation particularly in the Manila Bay area. The investigator did not even make an ocular inspection of the said direct route. 128. Yet, expert engineers consulted by Complainants plotted the new course against its original course and their findings show the deliberateness with which the captain and his co-conspirators, LCDR Reynaldo Lopez and LT SG Ruben B. Roque caused the delay in the ships trip by nearly two hours (ANNEX F of the Complainants January 26, 2006 Joint Reply-Affidavit; see also ANNEX D and ANNEX D-1 of the Joint Complaint-Affidavit). 129. Indeed, travel from the yacht basin to HPN normally takes only 10 minutes. Why did the captain take 45 minutes to bring the ship from the basin to the headquarters? The usual route from Sangley Point to HPN only takes 45 minutes. Why did the captain take a dog-leg this time, at such a crucial phase of the trip when the crime evidently took place? 130. He was the captain of the ship. He knew what he was doing. He knew how much time it usually took to travel the pre-plotted route. That there was a pre-plotted route and the captain mysteriously diverted the ship from that route at such a crucial phase of the trip is enough to raise suspicions from any reasonable investigator. He and his co-conspirators needed the extra time about an hour to clean up the place where the officer was actually shot, clean up his body and dress him up, move him back to his stateroom, and finally, manufacture the suicide scene. 131. Third, he deliberately concealed the presence on the ship of a mystery passenger the Respondent PO1 Carlito Amoroso, then security detail for the Navy Chief, Vice Admiral Pio Carranza by not registering him on the ships manifest. He claims that PO1 Amoroso was an authorized passenger. Yet the Report of the Committee already cited above had established that the ships manifest of all the passengers on the ship at that time had been missing; the report said pages were torn from the gangway logbook that would normally show the names of people who got off the ship that day, as well as the mustering list that accounts for the total crew present while cruising. 132. In fact, at the beginning, CAPT Ordoez was silent about Respondent Amorosos presence at the ship all throughout that fateful trip. At the PNP-CIDG investigation, he testified that PO1 Amoroso left the ship on Sept. 25, 1995 at Sangley Point and never returned to the ship.

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133. P01 Amorosos presence on the ship was first revealed by LT SG Roque to the Board of Inquiry of the Philippine Navy in a statement dated December 21, 1995, which was attached as ANNEX L to the Joint Complaint-Affidavit. (CAPT Ordoez would eventually say the same thing to CIDG investigators in a June 5, 1997 statement, a copy of which was attached as ANNEX T of the Joint Complaint-Affidavit). 134. Yet P01 Amorosos own statement gave him away. PO1 Amoroso said in a May 13, 1997 Statement to the PNP-CIDG that he returned to the ship in the afternoon of Sept. 25, 1995, supposedly to retrieve his two sacks of rice (ANNEX U of the Joint Complaint-Affidavit). 135. In the same statement, he also said that on Aug. 16, 1995, on orders from CAPT Ordoez, he was fetched by rubber boat to join the ships Tawi-Tawi trip, by virtue of his authority from Vice Admiral Carranza to escort his lumber from Tawi-Tawi Governor Gerry Matba. He also admitted that on Sept. 4, 1995, he disembarked from the ship in Zamboanga City to take a commercial boat back to Manila for an urgent business in Quezon City. However, he rejoined the ship by flying back to Zamboanga City on Sept. 10, 1995.

136. P01 Amoroso obviously could enter and leave the ship at will, with the knowledge and consent of Captain Ordoez who did not bother to keep a record of his coming and going, against the Navys own rules. More on this will be said below. 137. But the loss of vital ship records and the failure of CAPT Ordoez to account for them are inexplicable enough. CAPT Ordoez has not and could not explain them. He who is supposed to the master of the ship, the officer ultimately responsible for whatever happens on his ship, could not account for the mysterious loss, the missing pages, the presence of the apparently unregistered passengers (including his own wife) at the time the death, nay, murder, in question happened. 138. The Ad Hoc Committee report thus flailed him for administrative lapses, under the doctrine of command responsibility, due to his failure to preserve ship documents, such as: missing pages of gangway logbook covering the period before, during, and after the incident; mustering list of personnel for the month of September 1995; and for not maintaining the required passenger manifest (ANNEX A of Complainants January 9, 2006 Joint Reply Affidavit). 139. The only viable and credible explanation is that the loss and concealment were deliberate because the records would have otherwise exposed the truth about the death of Ensign Pestao on his own ship. 140. Fourth, he lied about the animosity he had shown to the slain officer, who had opposed the loading on the ship of illegal cargo. Indeed he lied about the circumstances surrounding the purchase of the cargo. Ensign Pestao had disclosed not only a cargo of illegal logs on the ship but worse, of shabu stashed inside 20 sacks of rice loaded at Bongao, Tawi-Tawi. CAPT Ordoez said the ships party purchased the rice for the ships provisions as well as for personal consumption of some ship crew. 32

141. However, the other respondents present a different tale. In the case of LT Colico, in his May 10-1997 statement to the PNP-Criminal Investigation and Detection Group, he declared that the rice cargo all belonged to Respondent LT SG Roque (ANNEX W of the Joint Complaint-Affidavit). Respondent P01 Amoroso, meanwhile, said CAPT Ordonez as well as LT Colico themselves purchased the rice.

142. There also was the matter of six missing pillows, about which the slain officer had spoken to his parents as having allegedly contained illegal drugs. When asked by Ensign Pestano, who as Cargo Deck Officer, was responsible for all ship equipment, facilities and implements, about the missing pillows, the captain pointed to the Army passengers who had supposedly made off with them. (ANNEX A of Complainants January 9, 2006 Reply-Affidavit). 143. In the first place, Captain Ordoez was not initially forthcoming about what else his ship carried, saying that all it had were troops battalion, construction materials and vehicles until the Senate hearing on the case surfaced the fact of the illicit cargos on his ship, in particular, illegally-cut lumber, so that in his June 5-statement (ANNEX A of the Complainants January 9, 2006 Reply-Affidavit ), he now admitted that he had loaded 1,053 pieces of lumber at Tawi-Tawi, 300 pieces for his own kubo aside from those purchased by his Executive Officer, LT SG Roque. 144. CAPT Ordoez claims he had no motive whatsoever to orchestrate the officers death. Yet his own statements belie this claim. In his June 5 Statement referred to above, he admitted to having been confronted by Ensign Pestao about the illegal cargo notably the illegal logs (response to Question No. 26) thus confirming the naval officers revelations to his father about the dirty and hostile environment he has found himself in on his very own ship of which he was its Cargo Deck Officer. 145. The Ad Hoc Committee also established this much: Prior to his death, Ens. Phillip A. Pestao was designated as Cargo Officer of BRP Bacolod City. There was disagreement between ENS PESTANO being the Cargo Officer and his CO, Cmdr. Ricardo Ordonez, for instance, on the legality of transporting 14,300 board feet of assorted lumbers without the transport papers, bill of lading and other related documents that will support the legitimacy of transporting said lumber. Apart from the absence of said documents these were not recorded in the Cargo Manifest; 146. LT SG Roque, as next ranking officer in the ship and someone who, by reason of his position, must always be at the beck and call of the ship captain, is evidently at the center as well of the conspiracy. 147. The dog-leg could not have been accomplished without his willing and active participation in it. Like the rest of the responsible officers of the ship, he kept his mouth shut about the zig-zag route the ship took to delay its arrival at the HPN on Roxas Boulevard. 33

148. Likewise, setting up the suicide scene could not have been made possible without his willing consent and participation. As EX-O of the BRP Bacolod City, all the crucial information about the crucial goings-on on the ship was available to him as well. He would have known about the un-documented passenger on his ship PO1 Amoroso as well as the delicate if illegal mission he was there for. 149. Too, he would have known about the fact that illegally-cut logs were transported on the BRP Bacolod City, over the protestations of the victim. He would have known as well of the illegal discharge of 20 drums of fuel oil to Gov. Matba. 150. In the conflicting narratives presented by the other Respondents in this case about how the death of Ensign Pestao was supposed to have been discovered, he also figured in a central role, as will be seen in the discussions below. He claims to have been present when LT Colico handled the gun supposed to have been used by the victim to shoot himself and asserts that the latter did remove the guns magazine (ANNEX L of the Joint Complaint-Affidavit). 151. This of course is contracted by most everyone else, especially by LT Colicos own version of the event, which says that he did remove the magazine with the live bullets in it a tale compatible with Picture No. 8 of the planted pistol a copy of which was attached as ANNEX O of the Joint Complaint-Affidavit. The photo shows the magazine still intact with its live bullets. Either LT SG Roque was deliberately lying to mislead investigators or he was telling the truth about an earlier event; for it is also quite possible that LT Colico did take the magazine and its bullets out but later on re-arranged them in the location and position in which the investigators found them. 152. He too was there when the ship captain scolded the slain officer for his sleuthing in LCDR Casiss stateroom and threatened to place him under a court martial proceeding; He kept quiet about it, indicating his assent to the whole scheme. In fact, tying it all up, it means that he too was part of the drug running syndicate that, in the eyes of Ensign Pestao turned the BRP Bacolod City into a dirty ship.

LCDR Reynaldo P. Lopezs story 153. In his Counter-Affidavit, he averred that the only reason why he was being implicated to the murder was that he had recklessly blurted out at the victims wake, within earshot of the victims brother Thomas, that we have loaded something more than that after he was asked by the victims father why Ensign Pestao was murdered merely because of a shipment of illegal logs. He thus claimed that he only meant to refer to the quantity of the lumber which their ship ferried.

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154. First, his denial does not detract from the fact that it was the victims father who asked him the question. Second, his clarification is much too ridiculous, considering that the victims father, it was clear, was not asking about the quantity of the logs in question that was transported on the BRP Bacolod City over the protestations of the victim the elder Pestao had every reason to assume that his response to the question meant that something more than an illegal shipment of logs for the pleasure of the Navy Chief, Vice Admiral Carranza, was the reason for the victims murder, considering the revelations the slain officer had made to him earlier about illegal drugs transported through the BRP Bacolod City. 155. Third, his response, even if taken at face value, confirms the fact that Ensign Pestao had indeed been murdered and was not a suicide victim. Literally, LCDR Lopez was saying that the illegal shipment was worth taking the life of the victim, because the quantity involved was large enough to call for it. Yet the victims father could not forget the exact words LCDR Lopez had told him at his sons wake: we have loaded something even more valuable than that (as stated in his affidavit attached as ANNEX E to the Joint Complaint-Affidavit). 156. LCDR Lopez claimed to be the victims closest friend on the ship. But his actions on that day belie that. He admitted that upon learning of the victims death, he did not leave the bridge to see what happened to him until police came some hours later. This is not the normal reaction of someone who just lost a friend who had just committed a suicide. The only other inference worthy of credence is that this revelation is yet another circumstantial evidence of his collusion with the other Respondents in this case: he did not care to see his friends body because he was already aware that Ensign Pestao was shot to death well before LT Colico purportedly discovered his death. 157. Moreover, in his statement to police on October 18, 1995, the depth of his involvement in the murder can well be seen (Answer to Nos. 5, 40 and 41, attached as ANNEX C of the Joint Reply dated January 11, 2006). At the time of the incident LCDR Lopez was not only the Engineering Officer of the BRP Bacolod City but also its Operations Officer and Officer of the Watch and Sound Power Telephone Talker. He was at the ships Port Castle (the Bridge), right next to the ship commander. In other words, he had immediate access to all the information coming from other parts of the ship; in fact he would be privy to all the information relayed to the ship commander. 158. He is the third most important officer in the ship, after the ship captain and the executive officer. As Operations Officer, he was responsible for all the ships mission plans and executes these plans on the ship captains approval. 159. In fact, as Operations Officer, he had immediate responsibility for the missing passenger manifest showing the names of other people on board the ship on that occasion, and for the fact that pages were torn from the gangway logbook that would normally show the names of people who got off the ship that day and the mustering list that accounts for the total crew present while cruising. 160. In fact, without his consent, the identity of the mystery man on the ship PO1 Carlito Amoroso could not have been concealed. Indeed his consent was needed to allow P01 Amoroso to board and leave the ship at will. 35

161. As Operations Officer, he would also be immediately responsible for all the cargo loaded into the ship including the illegal logs and illegal drugs that the slain naval officer was supposed to blow the whistle on, if he were not murdered as well as also cargo taken off the ship, including the 20 drums of fuel given to Gov. Matba. 162. Most of all, as officer-in-charge of the ship, LCDR Lopez was immediately responsible for the ships route that day. The dog-leg chartered by the ship captain could not have been carried out without his knowledge and consent. He cannot deny that the ships Special Sea Detail made the sound-off for the ships 7:00 a.m. departure from Sangley Point, Cavite and was scheduled to make its sound off upon the ships expected arrival at HPN at 7:45 a.m. or 45 minutes later. 163. His position as both Operations Officer and Engineering Officer of the ship (not to mention as the Officer on Watch at the time the death of the victim took place) is such that it would have been impossible for him not to know of the grand scheme to murder Ensign Pestao and to fabricate evidence so as to pass it off as a mere suicide case.. 164. In fact, under the circumstances of this case and his actuations all throughout, the conspiracy and the cover-up could not have happened without his knowledge and active participation.

LT Joselito Lugay Colicos story 165. LT Colicos story is shot through with many contradictions that he practically impeaches himself. This is evident in the various statements he made to the different government agencies that have investigated the case thus far. His general denials and alibis clash with one another that it would be difficult to give the slightest credence to the story he has concocted to extricate himself from the conspiracy to murder the victim. Indeed, his version of the story is irreconcilable on many points with those of others that he had sought to support him. As his many versions of himself in the role of the one who discovers the death of the dramatis persona in this case is crucial to many details of the murder, this Position Paper will examine him ahead of his senior officer, LCDR Leodegar Cruz Casis.

How he discovered the death 166. LT Colicos tale of how he found the victims body does not comport with ordinary human experience. He begins his tale with the yarn that he was allegedly ordered by his EX-O, LT SG Roque to check Ensign Pestaos cabin and thus obeying the order, found him half-slumped on his bed. 167. The astounding thing for someone trained in the military an officer at that, a graduate of the countrys top military training institution is that LT Colico, instead of first checking if the victim was still breathing, steps out of the cabin post-haste to fetch LCDR Luidegar Casis to help him determine what happened to Ensign Pestao. 36

168. He does not report the matter immediately to the superior who ordered him to look for the victim; what he does is take back to the room LCDR Casis and another supposed witness: HM2 Welmenio Aquino; thus he makes three trips to and from the cabin and all that time, does not at all make a feedback to the Ex-O, much more to the captain of the ship. To make matters worse, he admits to have subsequently tampered with the alleged suicide gun. 169. Thus in his Oct. 5,1995 statement to the National Bureau of Investigation, LT Colico claimed that it was his Ex-O, LT SG , who gave him the order to look for the victim. 170. But two years later, in his own statement, LCDR Luidegar Casis, belied this in his May 5, 1007 statement to agents of the Criminal Investigation and Detective Group (CIDG) who took over the investigation of the case from the NBI (Answer to Question No. 18, ANNEX A-Joint Reply dated July 25, 2005). 171. LT Colico, five days after LCDR Casis made the statement, gave another statement to the CIDG where he revised his first statement and said it was on his own initiative that he went to Pestaos cabin (May 10, 1997 statement to the CIDG, ANNEX D of his Counter-Affidavit); nobody gave him any orders, he now declared. 172. Yet, a few days later, LT Colico changed his story once more: when he testified at the Congressional hearing on the case on May 15, 1997, he went back to his first story that the ships EX-O had ordered him to check on the victims whereabouts (TSN, May 15, 1997, p.2, ANNEX B-3, Joint Reply dated July 25, 2005).

What time did he discover the victims body?

173.

We get more confused by his declarations on this point. Consider this: a. September 27, 1995 statement (WPD) and October 17, 1995 (NBI) : it was 8.25 a.m. b. May 10, 1997 statement (CIDG): 7.55 a.m. c. May 15, 1997 statement to the Congressional hearing: around 8:00 a.m. and according to him, definitely, it was not 7:30 a.m. nor 8:30 a.m. because it was at 8:00 a.m. when the Special Sea Detail was sounded (TSN, May 15, 1997 pp. 5-7, ANNEX B and alluded pages as B-1 and B2, Joint-Reply dated July 25, 2005).

174. Why this stark vacillation? With the newly-unearthed evidence that the BRP Bacolod City made an unplanned dog-leg as it sailed from Sangley Point to the Philippine Navy headquarters in Manila, it is now easy to see why.

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175. It appears that LT Colico, as the investigation progressed, came to realize that if he told the truth about exactly what time he supposedly discovered the victims death, it would be easier for any diligent investigator to tie two and two together. He had to cover up for the time the ship lost when the conspirators, with CAPT Ordoez in command, delayed LC-550s arrival at the Navy headquarters to give them time to set up Ensign Pestaos stateroom as the scene of his suicide. He had to hide the fact of the delay. It would have been a giveaway not to muddle the matter. 176. But his own roommate, LT Alba would uncover his own lies. LT Alba states that even LT Colicos third visit to Ensign Pestaos stateroom took place much earlier, at 7:40 a.m. 177. LT Alba in fact admitted that on that third visit, he was present with SNI Miranda and HM2 Aquino when LT Colico tampered with the gun (Questions and Answers, No. 27-29, LT Albas May 22, 1997 statement to the CIDG, ANNEX X of the Joint Complaint-Affidavit). 178. This irreconcilable discrepancy in his various accounts of his supposed discovery of the death of the victim a discrepancy of nearly a full hour strongly supports the theory that the conspirators needed time to fabricate evidence to make the victims death appear like a suicide case, hence the belated report of the discovery of Ensign Pestaos death. In fact, it highlights the findings of the AFP Inspector Generals Ad Hoc investigating committee referred to above that the ships captain, for no reason, delayed by the journey of the ship from Sangley Point to the Navy Headquarters in for almost two hours by taking a zigzag route, when the trip usually took no more than 45 minutes. (ANNEX A of January 9, 2006 Reply Affidavit). Who were with LT Colico when he tampered with the alleged suicide gun? 179. In his statement to investigators of the Western Police District, LT Colico claimed that he did so only in the presence of LCDR. Casis and HM2 Aquino removing the magazine and the bullets in it to prevent any accidental firing; in his statement to the NBI however, he added the detail that he noticed that there were four live bullets in the magazine and one in the chamber, before he returned the gun to where he found it. He also said that he had used a piece of cloth to wipe the gun. 180. By now, we know that LT Alba had admitted that on that third visit, he was present with SNI Miranda and HM2 Aquino when LT Colico tampered with the gun (Questions and Answers, No. 27-29, LT Albas May 22, 1997 statement to the CIDG, ANNEX Y of the Joint Complaint-Affidavit). LT Alba however virtually denies that LCDR Casis was there too. 181. From LT Albas account, we find that it was LT Alba who cautioned LT. Colico thus: BOK BAKIT MO HINAWAKAN ANG BARIL? Upon hearing this, LT Colico picked up an underwear belonging to the victim and used it to wipe the gun (Q & A Nos. 27-29, and 35, Albas May 22, 1997 Statement to the CIDG, ANNEX Y of the Joint Complaint-Affidavit). 38

182. LT Colico would further muddle his story before the May 15, 1997 hearing, saying that the presence of so many people in the cabin when he visited it for the FOURTH TIME prompted him to pick up the gun and make sure that it does not go off and hit anyone in the room (TSN, May 15, 1997, pp. 1, 20, 22, ANNEXES B4 to B6, Joint-Reply dated July 25, 2005). This account of goes against LT Albas statement that the other ship personnel came in only after LT Colico had disturbed the crime scene by picking up the pistol and wiping it clean. 183. By the time LT Colico appeared in the May19, 1997 joint Senate committees hearing, he could only manage to say that he could no longer remember what exactly happened as he was in a state of shock at that time (TSN, May 19, 1997, ANNEX C, Joint-Reply dated July 25, 2005). 184. The ships Executive Officer, LT SG Roque, who was not mentioned in the statements of LT Colico, LCDR. Casis and HM2 Aquino as having visited the crime scene, would tell NBI investigators that from the bridge where he was with the ship captain, he joined the three as they returned to Ensign Pestaos cabin, where he saw the victim bloodied, half lying across his bed, like dead (ANNEX M, Joint Complaint-Affidavit). 185. Only LT SG Roque insisted that he was present when LT Colico tampered with the evidence. 186. LCDR Casis had a different version, saying that he was positive that it was HM2 Aquino who joined him and LT Colico in inspecting the victims cabin, and that the ships Executive Officer was not with them. After that, he returned to the bridge to report the death to the ship captain, who surprisingly did not find it something that he should concern himself with (not even to check if such a report was in fact true). 187. What LT Colico conveniently excludes from his statements to the various authorities who had investigated the case is the fact that his cabin, which he shared with LT Alba, stood next to the room of Ensign Pestao; not only that, but that it being separated only from the latters stateroom by a common restroom or head, he can actually enter the late officers room without need of any key through the head. Where did the gun come from?

188. To buttress the suicide theory, LT Colico repeats the HM2 Aquinos tale that the gun Ensign Pestao used to kill himself was borrowed from the gangway watch. 189. This flies in the face of the fact that if the officer had indeed intended to end his own life, he would not have used an old and defective gangway gun as he himself had a new service firearm and also owned a .45 caliber pistol, both of which are missing.

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190. LT Colico further puts forward PO1 Mil I. Leonors statement (ANNEX F of his Counter-Affidavit) purportedly to support his own theory of which gun had killed the officer that at about 8:05 a.m. of Sept. 27, 1995, PO1 Leonor met the victim at the port ladder of the ship, carrying an empty pistol belt. 191. This quite obviously contradicts LT Colicos statement to the Senates joint committee hearings that he discovered the officers body at about 8:00 a.m. or FIVE MINUTES EARLIER than P01 Leonors supposed meeting the ships cargo officer at the ships port ladder, which is some distance from the victims state room. 192. Certainly, this could not be, unless what PO1 Leonor saw at the port ladder FIVE MINUTES after LT Colico supposedly discovered the officers dead body was Ensign Pestaos ghost! On the pictures he claimed to have taken of the crime scene 193. LT Colico, in a futile bid to present official efforts to preserve evidence at the crime scene, presented photographs he allegedly took of the victims room at 8:27 a.m., of September 25, 2008, or about 12 minutes after his supposed discovery of Ensign Pestaos death. 194. This information he volunteered, however, only further implicated him in the conspiracy because it gave further evidence of his having tinkered with the evidence.

195. For one, the photograph he supposedly took of the victims left arm (which bore a watch indicating the time the photograph was taken: 8:27 a.m.), showed the three fingers on the left hand of the victim that were curled down; the WPDs photograph of the same, however, presented extended fingers of the left hand. 196. There was also a marked difference between LT Colicos photograph and those of the WPD as far as the stance and distance between the officers left and right feet were concerned (See the set of four (4) pictures, marked as ANNEXES G to G3, Joint- Reply dated July 25, 2005). 197. Undoubtedly, these indicate LT Colicos willing and active participation in the whitewash of the case; 198. The photographs were evidently taken BEFORE investigators from the WPD arrived; between the time he took the pictures and after the WPD investigators took their own pictures of the crime scene, the victims body was moved; the lifeless and bloodied body of the victim could not have moved by itself. Someone else moved it, nay, arranged it, to suit the story that the victim had taken his own life.

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LCDR Luidegar Cruz Casiss story

199. In his Counter-Affidavit, LCDR Casis upheld his statement of October 4, 1995 statement to the NBI (ANNEX P of the Joint Complaint-Affidavit). But instead of belying his participation in the murder, it only lays bare his direct complicity in it. His statement indicates a clear intent to confuse if not muddle the investigation. His own version of the discovery of the victims death, as contained in his October 4, 1995 statement to the clashes with key points of the narration of the same events by LT SG Roque and LT Colico 200. As pointed out in paras. 37-41 of the Joint Complaint-Affidavit, LCDR Casiss statement to the NBI contradicted the statements of LT Colico and LT SG Roque, saying that he, alone, without LT Colico who was left behind at the bridge after reporting the death of Ensign Pestao, went to the victims room all by himself, where he saw him bloodied, with the pistol belt and holster on top of the bed at the victims right side (which therefore show that it was moved, because the picture taken by the WPD shows the same pistol belt and holster hanging by the edge of the bed, not fully resting, and not at the right side but at the left side of the victim (ANNEX Q of the Joint Complaint-Affidavit). 201. This, as already pointed out above, contradicts both LT Colico and LT SG Roques statements about the event. Moreover, in the same NBI declaration, he said that at about 8:15 a.m. he was at the station (bridge) of the ship when he heard that PHILLIP was being called to report to his station.

202. Yet in his May 5, 1997 statement to the CIDG, he said that at that time, he was about to finish washing his car at the main deck, thus, after he was informed by LT Colico about his discovery, he personally checked the victims bloody alone, and then informed the ships Executive Officer, LT SG Roque about it; having done that, he returned to the victims stateroom, this time, with LT Colico and no one else in tow, and it was only he who was present when the former picked up the gun, unloaded the bullet from its chamber and cleaned it with a piece of cloth. 203. In fact, his behavior all throughout the material date indicates his active participation in the conspiracy. For someone who graduated from a top US naval school, LCDR Casis cannot excuse himself from culpability for allowing LT Colico to tamper with the gun found at the victims stateroom. 204. By his own admission, he did nothing when LT Colico tampered with the evidence. . 205. Moreover, it could not have passed his notice that the most senior officers of the ship deliberately delayed the arrival of the ship at the HPN (and about this he kept quiet). 41

206. LCDR Casis, by virtue of his position as Outgoing Office of the Day (OOD), means that he had immediate access to what happened and what was happening on the ship. 207. It could not have passed his notice that they did so to stage the suicide scene in the victims stateroom; it could not have passed his notice that the suicide scene was in fact staged; it could not have passed his notice that P01 Carlito Amoroso was on the ship as an undocumented passenger on the most crucial dates and times (and he was mum about it for the most part); in fact, he was in on all these, as shown by his behavior before, during and after the fact of the murder. 208. His conflicting statements to various investigative agencies indicate that he was part of the inner circle of conspirators to the murder of Ensign Pestao and to the fabrication of evidence to make it appear that he took his own life. Indeed, like HM2 Aquino, he would make significant changes on material points in his original statement to investigators, as can be seen in the statements the two gave two years later to the CIDG (attached as ANNEX Z and ANNEX Z-1 respectively to the Joint Complaint-Affidavit.

PO1 Carlito Bagalacsa Amorosos story

209. There are clear indications that LT Colico had sought to hide from investigators the fact of the presence of P01 Carlito Amoroso on material points of the ships journey. LT Colico had belatedly admitted to the presence in the ship of P01 Amoroso an unregistered passenger of the BRP Bacolod City with the qualification that the Philippine Navy chiefs bodyguard left the ship at Sangley Point in the morning of September 25, 1995 after having paid the P500,000 mess account (May 10, 1997 Statement to the CIDG, ANNEX X of Joint Complaint Affidavit). 210. He also sought to exculpate P01 Amoroso from drug charges, saying that the twenty (20) sacks of rice where the illegal drugs were alleged to have been hidden belonged to the ships Executive Officer, LT SG Roque. This directly contradicted LT SG Roques own explanation about the rice purchase, owning up to only two (2) sacks of rice, which, according to him, he requested both LT Colico and P01 Amoroso to buy on his behalf. It becomes more interesting with LT Albas own declaration to the effect that he was with LT Colico, PO1 Amoroso and other enlisted men of the ship when LT Colico bought all the rice for his own account in Bongao, Tawi-Tawi (See Answers to Questions Nos. 22 and 23, ANNEX Y of the Joint Complaint-Affidavit).

211. The ships captain himself, CAPT Ordoez, never mentioned PO1 Amoroso during the Senate investigations; it was only during the CIDG probe that he brought up the presence of the Navy chiefs henchman, although like LT Colico, he also asserted that P01 Amoroso disembarked on September 25, 1995 at Sangley Point and never returned to the ship.

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212. In fact, most everyone in the ship most of all the responsible officers who ought to know, have known, and had the duty to disclose kept to themselves their knowledge of PO1 Amorosos presence on the ship in the most crucial dates. 213. And what of P01 Amorosos own statements? Two years after the death of the navy officer, Amoroso would say in a statement given to the CIDG that on August 16, 1995, upon orders of the ship captain, he was fetched by a rubber boat to join the ships Tawi-Tawi trip, by virtue of the authority given by then FOIC, PN, VADM Pio Carranza, to escort the latters lumber given to him by then TawiTawi governor Gerry Matba, now deceased. He was billeted in a cabin he shared with P01 Pedro and P03 Estrellado. In the same statement, he admitted that the ship captain illicitly delivered twenty (20) drums of crude oil to the Tawi-Tawi governor (Answers to Questions No. 49-51, ANNEX U of the Joint ComplaintAffidavit 214. P01 Amoroso also admitted that on September 4, 1995, he left the ship after it docked in Zamboanga City and took a plane to Manila on September 10, 1995. This but indicates that he could leave and enter the ship at will, without any record of him doing it, and with the willing and knowing assent of the ships responsible officers, principally of the ships captain. 215. According to P01 Amoroso, he heard of Ensign Pestaos death as early as 9:00 a.m. of that fateful day but he simply ignored and did not care about it, stating as well that he was no longer with the ship when the incident happened and was off the ship in the afternoon of September 25, 1995 after getting his two (2) sacks of rice. (Answer to Question No. 73, ANNEX U of the Joint ComplaintAffidavit). 216. As if to justify this nonchalance, he also belied the admission by the ship captain that both of them were confronted by the slain officer while the ship was in Tawi-Tawi because of the illegal load of timber, saying that HE NEVER CAME TO KNOW PHILLIP PESTANO or any other ship officers except Lt. Cmdr. ORDONEZ and EX-O ROQUE (Answer to Question No. 22, ANNEX U of the Complaint-Affidavit). 217. But P01 Amorosos denials were belied by the statements of other ship personnel. P03 William Estrellado, for instance, would state that he returned to the ship the following day, September 26, 1995 to supervise the unloading of the lumber for the Navy chief (Answer to Question No. 21, ANNEX V of the Complaint-Affidavit). 218. The most damaging statement was that of P02 Cipriano Antipala, the ships Assistant POIC of the Deck and Gunnery Department, who attested that P01 Amoroso disembarked from the ship only at about 4:00 p.m. of September 25, 1995 and returned the following day to finish the unloading of Carranzas illegal cargo (thus corroborating P03 Estrellados statement that P01 Amoroso in fact returned to the ship the following day for that purpose. P01 Antipala also stated that he was very certain that P01 Amoroso left the ship without taking any 43

sack of rice with him (Answers to Questions, Nos. 27, 30 and 31, ANNEX W of the Joint Complaint-Affidavit).

219. In fact, P02 Antipalas statement squarely establishes that P01 Amoroso was definitely on the ship before, during and well after the navy officer was killed.

220. Why was P01 Amoroso the Navy chiefs bodyguard not listed in the ships manifest? And why was he given the privilege to come and go as he pleased, without having to register the fact in the ships books? Why did the responsible officers of the ship protect his identity and the fact of his presence in the ship on crucial times and dates from being known in the investigations until much later? Most of all, why did P01 Amoroso himself state to police investigators that he was already off the ship at the time Ensign Pestao was killed when the truth is that he was there before, during and well after the shooting? 221. Consider these circumstances: P01 Amoroso could leave and enter the ship at will; he was allowed to do so by responsible officers of the ship, all the way to the ship captain, as an unregistered passenger; he was a special passenger carrying the authority of the highest officer in the Philippine Navy, the FlagOfficer-in-Command himself at the time, Vice Admiral Pio Carranza; he was there to facilitate the transport of undocumented (and hence illegal logs) for the Navy chief; (The victim himself had objected to this shipment and even spoke with P01 Amoroso about it);P01 Amoroso was likewise implicated by the victim in an alleged drug trafficking syndicate that used the Navy ship for transporting contraband; P01 Amoroso denied being on the ship at the time Ensign Pestao was killed; he also denied returned to the ship after that faithful day; yet testimony from other ship personnel say that he was there before, during and well after the shooting and that in fact, he returned to the ship the next day to supervise the unloading of Carranzas cargo. These circumstances could only lead to one conclusion: P01 Amoroso was the triggerman who shot and killed Ensign Pestao. 222. Another question that needs to be answered by Navy authorities is this: where is P01 Amoroso, PN AFPSN-619734? Complainants have obtained a copy of his Summary of Information (SOI) from the Philippine Navy Computer Center. The SOI simply said that as of January 16, 1997 or about two years after the murder of Ensign Phillip Andrew A. Pestao there was no available record on P01 Amoroso. 223. This is one piece of circumstantial evidence pointing to a big whitewash. Someone in the high places with skeletons in the closet to hide away from the prying eyes of the public had PO1 Amorosos records erased from the Navys data center. A copy of the SOI is attached for the first time to the records of this case as ANNEX A to this Position Paper.

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LT Alfrederick Angeles Albas story

224. LT Alfrederick Alba, supply officer of the ship, uncovered his own participation in the murder when he revealed for the very first time before CIDG investigators that he was with ENS. COLICO, SIHM AQUINO, SNI MIRANDA inside the victims cabin when HM2 Aquino checked the slain officers pulse; he even admitted placing the back of his palm on top of the victims right palm to feel if it was still warm (Questions and Answers, No. 2729, LT Albas May 22, 1997 statement to the CIDG, ANNEX X of the Joint Complaint-Affidavit). 225. He denied that LCDR Casis was there, thus contradicting at the same time the latters version of the event as well as that of HM2 Aquino, who insisted that only he, and LCDR Casis (and without LT Alba and SNI Miranda) witnessed LT Colico tamper with the gun. 226. Yet LT Alba would subsequently reveal unwittingly perhaps a crucial piece of information that explains the dog-leg that the ship did, delaying the trip from the Cavite Naval Station to the Philippine Navy Headquarters on Roxas Boulevard by at least an hour: that as early as 7:40 a.m. the remains of the victim had already been placed in the fabricated suicide scene at his stateroom. (Questions and Answers, No. 27-29, LT Albas May 22, 1997 statement to the CIDG, ANNEX X of the Joint Complaint-Affidavit). Thus he exposes the fact that the grand conspiracy in the murder of Ensign Pestao purposely delayed the ships arrival at the HPN to stage the suicide scene and that the murder was carried out much earlier. 227. What is also significant to note is that he also told CIDG investigators what other Respondents have to date kept a secret: the fact that the victims stateroom was next to his own stateroom, which he shared with LT Colico; the two cabins were separated only by a common restroom or head. Thus both of them LT Alba and LT Colico had easy access to the victims room (Answers to Question Nos. 13-14, ANNEX X of the Joint Complaint Affidavit).

HM2 Wilmenio Aquin, P02 Mil I. Leonor and SN1 Mirandas stories

228. HM2 Aquino clearly played a crucial role here: it was he who provided the story that the gun Ensign Pestao used to kill himself was borrowed from the gangway watch. 229. He also appears repeatedly in LT Colicos conflicting stories about how he discovered the death of the navy officer and how he tampered with the evidence the same gun that HM2 Aquino claims was the fatal gun that Ensign Pestao used to shoot himself in the head; 230. Like all the other conspirators in this case, he steadfastly claims that the victims death was self-inflicted. In his Counter-Affidavit, he repeated his claims in his October 4, 1995 statement where he alleged that he was the last on gang45

way duty and was therefore the last person to have possession of the .45 caliber pistol.He said that after his watch, he kept the ships gun in locker, slept at 7:00 a.m. pistol and was thereafter awakened by the victim who borrowed the gun along with its holster from him. At 8:00 a.m. he was roused from sleep by LT Colico who by then had discovered the victims death. He said he rushed all by himself to the slain officers room, followed later by LT Colico, and there he saw Ensign Pestao lifeless, with the gun on the floor near the victims feet. Having seen that, he and Colico went up to the bridge to report what they have seen. Then they he, LT Colico and LCDR Casis went down to the stateroom once again, purportedly to secure the area, there, he witnessed LT Colico pick up the gun with the use of a piece of cloth. 231. Yet he subsequently admitted to the National Bureau of Investigation (NBI) that as the ships logbook said, he only assumed gangway duty at 9:15 a.m. of September 27, 1995 or well after the victim was supposed to have killed himself with the gun that HM2 Aquino was supposed to be armed with while on duty. The logbook entry showed that before him, it was one SNI Mario Yanguas who was on gangway duty, beginning at 6:55 a.m. of September 27, 1995. (October 16, 1995-Statement to the NBI, ANNEX R-1 of the Joint ComplaintAffidavit). He was evidently lying through his teeth. 232. Since this was the case, how could he have lent the gun to the victim in the early morning of that fateful day when he wasnt even on gangway duty yet? This well indicates that another gun was used to kill the victim. 233. Moreover, two years later, in his testimony before the joint hearings in the Senate, in particular, on May 19 and May 20, 1997, he laid down yet another version of events, this time declaring that after he saw the lifeless body of the victim, the suicide note and the gun, without noticing any shell or bullet mark in the room, he stepped out of the stateroom, NEVER TO RETURN THERE. 234. In the same proceedings, he unwittingly bared yet another piece of circumstantial evidence pointing to the conspiracy of which he was part: that SN1 Mario Yanguas, being the personnel assigned to gangway duty from 6:55 to 8:00 a.m. of that day, was instructed by the ship captain to go off the ship to his house, purportedly, as CAPT Ordonez himself said, to slaughter a pig. It was a personal errand not an official duty of the gangway detail apparently meant to allow the conspirators to fabricate the tall tale that Yanguas, before leaving the ship, passed on the gun to another ship crew, a certain Modelo, who was also offduty at that time, who in turn gave it to HM2 Aquino, from whom the victim borrowed the gun he would use to shoot himself. 235. But the script written for HM2 Aquino is too crude to be lent any credence. For one, since on record in this ships logbook, it was Yanguas who was listed on gangway duty, the victim could not have known that the gun had been turned over to HM2 Aquino through another enlisted man, Modelo. Too, as gangway duty detail HM2 Aquino was supposed to return the gun to the ships Armory after his watch, in accordance with the ships rules. He was not supposed to keep the gun with him in his locker. Every gangway duty detail knows that if he violated the rules, he would face sanctions. Yet on this particular day, HM2 Aquino, if it were true that he was on gangway duty, simply brought the gun with him to his room and stored it in his locker, instead of returning it to the ships 46

Armory so that the next gangway duty detail can then use it in his watch. It is just too convenient a story to be credible. 236. Undeniably, HM2 Aquino was covering up for someone here; he was evidently in the inner circle of conspirators who planned and executed the assassination of Ensign Pestao. He was an active part of the conspiracy, having made it possible for the other malefactors to plant as evidence of the suicide a different gun in the stateroom of the victim as well as providing misleading information about the circumstances surrounding the death of the victim. . 237. PO1 Mil L. Leonor o told NBI investigators (attached as ANNEX F to LT Colicos Counter-Affidavit t) that at about 8:05 a.m. of Sept. 27, 1995, PO1 Leonor met the victim at the port ladder of the ship, carrying an empty pistol belt. LT Colico referenced PO1 Leonors statement to support the theory that the gangway duty gun found in the Ensign Pestaos stateroom was in fact the gun the used to kill himself. 238. Yet as already shown by this Position Papers discussion above, this itself contradicts LT Colicos own statement to the Senates joint committee hearings that he discovered the officers body at about 8:00 a.m. or FIVE MINUTES EARLIER than when P01 Leonors supposedly ran into Ensign Pestao at the ships port ladder, which is some distance from the victims state room. 239. Indeed, this could not be, unless what PO1 Leonor saw at the port ladder FIVE MINUTES after LT Colico supposedly discovered the officers dead body was already the ghost of the slain navy officer. 240. Besides, LT. Alba himself said that the victims death was reported much earlier because when LT Colico went to the Ensign Pestaos stateroom for the THIRD TIME, it was only around 7:40 a.m. Obviously, P01 Leonor was mouthing out lies according to the dictates of the conspiracy; in fact, it goes to show that he was an indispensable conspirator to the victims murder. 241. A certain SN1 Miranda was identified by LT Alba as having been present with him when LT Colico cleaned up the gun allegedly used by the victim to shoot himself. In particular, this is what LT Alba said: [Ang] [n]akita ko roon sa kuwarto ay sina ENS Colico, S1HM Aquino, SN1 MIRANDA.Pinulsuhan ni Aquino si ENS PESTAO ngunit siya raw ay patay na. Ako ay lumapit at idinikit ko ang likod ng aking palad sa taas ng palad ng kanyang kanang kamay para damahin kung maniit pa (Questions and Answers, No. 29, LT Albas May 22, 1997 statement to the CIDG, ANNEX X of the Joint Complaint-Affidavit.) 242. The other Respondents who were supposed to be there as well omitted SN1 Miranda from their account of it. What was SN1 Miranda doing there? Why was his presence in the event in question omitted by the others LT SG Roque, LCDR Casis, LT Colico, HM2 Aquino- in their own statements to the different investigative bodies that probed the 47

victims murder?P01 Leonor and SN1 Miranda have a lot of explaining to do. What to make of these Respondents conflicting testimonies? 243. Far from being badges of a truthful narration of facts, as LT Colico would have this office believe, their conflicting accounts actually undermine their credibility, according to the time-honored rule pronounced by the Supreme Court that: [w]here the inconsistencies pertain to material and crucial points, the same detracts from the overall credibility [of the testimony].70 244. Moreover, it has been held that: Denials and alibi unsubstantiated by clear and convincing evidence are negative and self-serving which deserve no weight in law and cannot be given greater weight over the testimonies of credible witnesses who testified in affirmative matters.71 245. Thus, in this case, deriving from the series of events or circumstances outlined in this Position Paper, Complainants have more than adequately proved that its combination is such that will produce their conviction beyond reasonable doubt, for murder, although premised on circumstantial evidence.72

III. THE RESPONDENTS HAVE A MOTIVE TO KILL ENSIGN PESTAO: DRUGS, GUNS AND ILLEGAL LUMBER.

246. Just two days before his death, Ensign Pestao confided to his parents about an ongoing conflict between him and senior officers of his ship, including the captain, because as the ships cargo officer, he had objected to the loading of illegally-cut logs on the BRP Bacolod City; he also told his parents that he too was blamed by his superiors for the loss of six pillows were used to hide drugs by some unscrupulous officers as well as for water damage sustained by a contraband cargo of guns. 247. He told his parents that even in Tawi-Tawi, someone followed him wherever he went. Nevertheless he shared his resentment towards his superiors who allowed the ship to be used for illegal purposes to some of his subordinates. These matters were in fact, relayed to the National Bureau of Investigation in sworn statements (ANNEXES A and B of the Joint Complaint-Affidavit).

70 71

People v. Rodriguez, 205 SCRA 791. People v. Llano 323 SCRA 791. 72 People v. Ramos 240 SCRA 191(1995).

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248. In the beginning, the ship captain denied his ship carried illegally-cut logs for the Navy chief; he was also silent about the unlawful discharge of fuel oil to Gov. Matba and the presence of PO1 Amoroso on his ship. But in his statement to the CIDG (ANNEX T of the Joint Complaint-Affidavit), he admitted that days prior to his death, Ensign Pestao confronted him and P01 Amoroso about the illegally-cut logs being loaded into the BRP Bacolod City. 249. This much the Investigative Report of the 7-Man Ad Hoc Committee conceded: Prior to his death, Ens. Phillip A. Pestao was designed as Cargo Officer of BRP Bacolod City. There was disagreement between ENS. PESTANO being the Cargo Officer and his CO, Cmdr. Ricardo Ordonez, for instance, on the legality of transporting 14,300 board feet of assorted lumber without the transport papers, bill of lading and other related documents that will support the legitimacy of transporting the said lumber. Apart from the absence of the said documents these were not recorded in the Cargo Manifest; (ANNEX A of the Joint Reply-Affidavit dated January 11, 2006). A naval conspiracy: the gunshot that no one on a dirty73 ship ever heard

250. A ship especially a military vessel of the type of the BRP Bacolod City is a closed environment; it is a tightly-run ship, with every hand in every station accounted for all-throughout the day. 251. The elaborate way in which the murder of the victim and the subsequent whitewash was carried out could not have been possible without a conspiracy involving herein Respondents. 252. Just staging the suicide scenario was a highly complicated task that could not have been carried out without the knowledge and active participation of the ships most responsible officers. This is especially true in the case of the naval establishment, subject as it were to the principle of Command Responsibility. 253. Crucial here was the window of opportunity provided by the dogleg that the ship captain took en route to the Philippine Navy Headquarters on Manila Bay; It is very telling that none of them ever mentioned the delaying zig-zag route taken by the ship in any of the investigative bodies constituted to probe the naval officers death. This matter was only first brought to light in the investigation conducted by a 7-member Ad Hoc Committee constituted not by the Philippine Navy but by the Office of the Inspector General of the Armed Forces of the Philippines. It did not help that its findings and conclusions were turned down by the highest
73

As the victim labeled the ship in a conversation with his parents the day before he was killed. See para.10 of affidavit of the victims father, attached as ANNEX E to the Joint Complaint-Affidavit.

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authorities in the AFP; worse of all, its findings and conclusions were kept hidden from the victims family for almost decade.

254. From the very beginning, there were tell-tale signs of a cover-up. Complainants the victims parents were offered by Navy authorities that they could arrange it with investigators to make his death appear like an accident. This they rejected. But just as soon as they came upon their dead sons stateroom they right away sensed foul play in his death: as they entered the cabin they saw more blood on the deck near the door than inside his room, where he was supposed to have shot himself on the head. Moreover, they wondered why their son would borrow an old 1911 caliber pistol to kill himself when he owned two .45 caliber pistols, both of which were missing. They also found that their sons locker was in disarray, the safety box inside emptied of contents, and his diary, about which he had told his parents, gone.74

255. The unmistakable signs of a whitewash were all over the place: the gangway logbooks crucial pages that would have shown the names of people who got off the ship that fateful day and the mustering list that accounts for the total crew present while cruising; The ship did not keep a passenger manifest of other persons not part of the crew but were on the ship during the period in question, which could have been used as a basis to determine who would be subjected to a paraffin test; It was as if everything was taken care of so that there would be no paper trail leading to the man who pulled the trigger; It simply is too much of a coincidence that crucial pieces of evidence that officially should be in the responsible officers keeping have all disappeared; the Respondents contradicting accounts of what happened. 256. Strangely enough, if indeed the victim shot himself using the gangway duty sidearm, it was a gunshot no one onboard the BRP Bacolod City ever heard. 257. Then there was LT Colico, whose tampering with the evidence in the case was betrayed by his own actions, as in the case of the photographs he took of the crime scene and his and his colleagues conflicting testimonies of what really happened. One small detail, seemingly insignificant, is that when the victim boarded the ship at 5:45 a.m. of that fateful day, he was wearing a pair of fatigue pants and undershirt; yet all of the Respondents were denied or kept mum about what happened to his clothes. 258. This gives rise to the reasonable inference that they disposed of the same, having been soaked in blood when Ensign Pestao was murdered, and then dressed his body in khaki pants and white T-shirt with blood stains that told a story different from the suicide that the conspiracy wanted the world to believe.

74

Paras. 5-7, Joint Complaint-Affidavit.

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259.

The Supreme Court has ruled in one case that In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all the participants performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring out the death of a victim. Conspiracy may even be shown through circumstantial evidence or deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused themselves when such acts point to a join purpose and design, a concerted action and a community of interest.75

260. Where there is no eyewitness, according to the High Court in another case, a resort to circumstantial evidence [becomes] essential because there were no eyewitnesses at the precise moment the victims were killed.76 261. Indeed, the absence of eyewitness in this case does not weaken the case against herein Respondents, inasmuch as it is not only by direct evidence upon which guilt may be predicated the accused may also be convicted of circumstantial evidence.77 262. The pieces of evidence strongly suggest that Respondents were conspirators in the plot to kill Ensign Ensign Pestao, with P01 Amoroso as the apparent triggerman. 263. It is clear that herein Respondents performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring about the murder of Ensign Pestao. Thus, there is probable cause to charge them in the proper court for his murder. Probable cause, as will call for the filing of the information in court, is a reasonable ground of presumption that a matter is, or may be, well founded; it means such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion that a thing is so. The term does not mean actual and possible cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. A finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that the act or omission complained of constitutes the offense charged. 78 264. Certainly, the pieces of evidence in the instant case support a finding of probable cause against the Respondents for being conspirators to the murder of Ensign Phillip Andrew A. Pestao.
75 76

People v. Barnuevo 366 SCRA 243(2001). People v. Cabrera 241 SCRA 28(1995). 77 People v. Fulinara 247 SCRA 28(1995). 78 Pilapil v. Sandiganbayan 221 SCRA 349 (1993).

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265. And the circle of conspirators, the pieces of evidence suggest, is evidently wider than the named Respondents; hence the need to name John Does as suspects as well.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is therefore prayed that the following conspirators be prosecuted for the murder of Ensign Phillip Andrew A. Pestao on September 27, 1995 on the Philippine Navys BRP Bacolod City: i. CAPT Ricardo Martirez Ordoez, PN, a resident of Officers Country Port, San Felipe Naval Base, Cavite City; ii. LT SG Ruben Bolasoc Roque, PN, a resident of N11, Lot 25 Duhat St., Mutual Homes, Phase II, Putatan, Muntinlupa City; iii. LCDR Reynaldo Palarpalar Lopez, PN, a resident of the Flag Secretarys Quarters, Sampaguita Street, Navy Street, Navy Village, Bonifacio Naval Station, Fort Bonifacio, Taguig City; iv. LCDR Luidegar Cruz Casis PN, a resident of Carot, Anda, Pangasinan; v. LT Joselito Lugay Colico, PN, a resident of Block 6, Lot 6, Phase 2-A, Barangay Anahaw, Silang, Cavite; vi. LT Alfrederick Angeles Alba, PN, a resident of Unit 4, Apartment 8, PMAAA Housing, Fort Bonifacio, Makati City or Dr. 6 Old Vice Chief of Staff Quarters, Camacho Street, Camp Aquinaldo, Quezon City. vii. HM2 Wilmenio Ulzame Aquino, PN, a resident of E16-F. Sta. Barbara, Sangley Point, Cavite City and/or Fleet Medical, Philippine Fleet, Sangley Point, Cavite City; viii. P01 Carlito Bagalacsa Amoroso, PN, a resident of No. 5, Venus St., Tandang Sora, Quezon City; ix. P02 Mil I.Leonor, PN, a resident of Block 119,Lot 9, AFP Housing, Bulihan, Silang, Cavite; x. A certain SN1 Miranda, PN, c/o the Headquarters Philippine Navy, Roxas Boulevard, Manila; and xi. Other JOHN DOES, whose identities and participation in the crime may eventually surface.

Respectfully submitted, January 30, 2009. Makati City for Quezon City.

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By the Counsel for the Complainants:

ROQUE & BUTUYAN LAW OFFICES


1904 Antel 2000 Corporate Center 121 Valero Street, Salcedo Village Makati City 1200 Email: mail@roquebutuyan.com Tel. Nos. 887-4445/887-3894 Fax No: 887-3893 By:

H. HARRY L. ROQUE, JR. PTR NO. 0008545/JAN. 8, 2009/MAKATI CITY IBP NO. 499912/LIFETIME/MAKATI CITY ROLL NO. 36976 MCLE EXEMPTION NO. II-002169 JOEL RUIZ BUTUYAN PTR NO. 0008546/JAN. 8, 2009/MAKATI CITY IBP NO. 500459/ LIFETIME/MAKATI CITY ROLL NO. 36911 MCLE COMPLIANCE NO. 0000571 ROMEL REGALADO BAGARES PTR NO. 0016687/JAN 14, 2009/MAKATI CITY IBP NO. 775414/JAN 12, 2009/SOCSARGEN ROLL NO. 49518 MCLE COMPLIANCE NO.II-0015132 JAN. 5, 2009

EXPLANATION This pleading is being served by registered mail to the other parties due to the lack of material time and messengerial services, in accordance with the Rules of Court. ROMEL REGALADO BAGARES

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COPY FURNISHED:

OFFICE OF THE NAVAL JUDGE ADVOCATE Counsel for Respondents Philippine Navy Bonifacio Naval Station ATTN: ATTY. TEOFILO G. PANAGA

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