THE Sandiganbayan has reversed and set aside its November 7, 2023 decision that affirmed the conviction of Bureau of Internal Revenue (BIR) — Special Investigation Division intelligence officer Francis Mercado on one count of graft.
In its 17-page resolution issued September 6, 2024, the anti-graft courts First Division granted the defendant’s motion for reconsideration saying a second look on the evidence on record showed the prosecution failed to establish Mercado’s guilt beyond reasonable doubt.
“A careful review of the prosecution’s evidence, as well as the Court’s record, made this Court entertain reasonable doubt as to Mercado’s guilt,” it said.
“The record is bereft of evidence to show that Mercado demanded, requested, or received any gift, present, share, percentage, or benefit for himself or for any other person, in connection with any contract or transaction between the government,” it ruled.
Associate Justice Juliet M. Manalo-San Gaspar penned the ruling with Associate Justices Marita Theresa V. Mendoza-Arcega and Geraldine Faith A. Econg concurring.
Based on the information filed in 2006 by the Office of the Deputy Ombudsman for Visayas, Mercado was accused of connivance with BIR Special Investigation Division chief Bonifacio Ybañez and late revenue officer Edgar Palgan in allegedly soliciting or demanding and receiving cash amounting to P60,000 from complainant Leonila Montero, owner of Alona Tropical Beach Resort in Panglao Island, Bohol
Montero said it was Palgan who first got in touch with her in March 2005 through phone calls and text messages and instructed her to submit sales receipts for 2004 and January to March 2005 to the BIR Region 7 office in Cebu City.
When she went there with the required documents, she said she was brought by Palgan to the office of Ybañez where Mercado was also present.
A second meeting on May 24, 2005 was also called by Palgan in Ayala Center, Cebu City where she was informed of her tax assessments. This was followed by an official demand from the BIR for her supposed liability of around P200,000.
Montero said she haggled hard and convinced the defendants to accept P60,000 in exchange for immunity from surveillance assessment.
After this, the resort owner said she consulted a friend who was a former chief of police of Panglao who advised her to work with authorities to set up an entrapment operation.
On August 2, 2005, police collared Ybañez and Palgan after receiving P30,000 in cash from Montero at a restaurant in Ayala Center, Cebu. Mercado was not present during the entrapment.
However, the prosecution insisted that he be included in the indictment.
On October 6, 2022, the Cebu City Regional Trial Court found Mercado guilty of the graft charge and sentenced him to six to eight years imprisonment with perpetual disqualification from holding public office. This was affirmed by the Sandiganbayan in its own decision dated November 7, 2023.
Initially, Mercado’s Motion for Reconsideration was thrown out for being filed out of time on the ground that the copy of the decision was sent to his counsel via electronic mail on the same day as the promulgation.
This gave him only until November 22, 2023 — 15 days after the email was sent — to file his appeal.
Mercado challenged this rule on the ground that the only valid service of court rulings under the Rules of Court are by personal service or through registered mail.
Based on the tracking record of the Cebu Central Post Office, the copy of the decision sent via registered mail was received at defendant’s address only on December 4, 2023 and he filed his motion for reconsideration by the same mode on December 15, 2024 — well within the 15-day period allowed.
The Sandiganbayan sustained the defense argument as valid and admitted Mercado’s motion for reconsideration.
In assailing the basis or his conviction, the defendant noted that the uncorroborated testimony of Montero did not constitute sufficient evidence or proof beyond reasonable doubt.
In reviewing the Montero’s testimony, the court acknowledged that it found “reasons to doubt the truthfulness” of her account regarding the involvement of Mercado.
It said the conspiracy was not proven by convincing evidence.
In addition, the court said it overlooked Mercado’s memorandum dated March 27, 2005 which included Alona Tropical Beach Resort in the list of businesses suspected of “under declaration and fraud.”
The court this “may have motivated Montero to point an accusing finger at Mercado.”
“As the prosecution in this case failed to discharge its burden of proving Mercado’s guilt beyond reasonable doubt, this Court has no choice but to acquit him,” the Sandiganbayan said.
