It is unnecessary to indulge in an exposition of whether the two series of acts falling under sub-paragraphs (a) and (c) of the Amended Information, proven in the course of the trial could have amounted to two (2) counts of plunder. It would be a purely academic exercise, as the accused cannot be convicted of two offenses or two counts of plunder on the basis of a single information, clearly charging him of only one count of plunder,* because that would violate his constitutional rights to due process, given the severity of the crime charged in this case.

The predicate acts alleged in sub-paragraphs (a) and (c) of the Amended Information, which formed two (2) separate series of acts of a different nature, were linked by the fact that they were plainly geared towards a common goal which was the accumulation of ill-gotten wealth for FPres. Estrada and that they shared a pattern or a common method of commission which was the abuse or misuse of the high authority or power of the Presidency.* (U.S. v. Hiverly, 437 F3d 752)

In sum, the Court finds that prosecution has proven beyond reasonable doubt the commission by the principal accused former President Joseph Ejercito Estrada of the crime of plunder but not so in the case of former Mayor Jose Jinggoy Estrada and Atty. Edward Serapio.
(At pp. 205-208)

In other words, instead of the acts described in sub-paragraphs (a) and (c) of the Amended Information, being considered as distinct predicate acts, and consequently requiring that the acts described in sub-paragraph (a) and those described in sub-paragraph (c) constitute a “series” or a “combination”, the Court considered the acts in sub-paragraphs (a) and (c) as constituting separately a “series” or “two (2) series of acts”, each one an offense of plunder, rather than those acts described in sub-paragraph (a) constituting by themselves a predicate act, and similarly those described in sub-paragraph (c).

As it has now turned out, with the Court’s view of the Amended Information, that an offense of plunder is charged in sub-paragraph (a), and another in sub-paragraph (c), and possibly, also in sub-paragraph (b), and still another in sub-paragraph (d), the Amended Information charges the accused of four (4) offenses of plunder. It does not matter that the Court acknowledged:

It is unnecessary to indulge in an exposition of whether the two series of acts falling under sub-paragraphs (a) and (c) of the Amended Information, proven in the course of the trial could have amounted to two (2) counts of plunder. It would be a purely academic exercise, as the accused cannot be convicted of two offenses or two counts of plunder on the basis of a single information, clearly charging him of only one count of plunder, because that would violate his constitutional rights to due process, given the severity of the crime charged in this case.

(Decision, at p. 208)

The fact is that with the Court’s view, the accused was, under the Amended Information, placed in jeopardy of being found guilty of plunder should the prosecution prove one (1) of the four (4) offenses charged. Considering that the penalty is reclusion perpetua, it is of no significance whether he is found guilty of one, two, three or four offenses of plunder; the fact is, the prosecution need only prove one of four offenses charged in a single information. Upon the other hand, to obtain acquittal, the defense need to bring about failure of the prosecution to prove all of the four (4) offenses of plunder charged.

When the accused pleaded and underwent trial, the accused was completely unaware that his burden was four (4) times heavier that of the prosecution. Nothing, absolutely nothing, could be more unfair and repugnant to all rules of criminal procedure.

There has been a mistrial ? clear and incontrovertible, adequate to vacate the judgment of the Court.

The Court, of course, ruled:

The predicate acts alleged in sub-paragraphs (a) and (c) of the Amended Information, which formed two (2) separate series of acts of a different nature, were linked by the fact that they were plainly geared towards a common goal which was the accumulation of ill-gotten wealth for FPres. Estrada and that they shared a pattern or a common method of commission which was the abuse or misuse of the high authority or power of the Presidency.* (U.S. v. Hiverly, 437 F3d 752)

(Decision, at page 206)

It is respectfully submitted that the linkage of predicate acts so that they would constitute a “combination” or a “series” cannot simply be a common beneficiary of the acts, rather than their nature, time of commission, and like circumstances; otherwise, to constitute plunder it would have been totally unnecessary to speak of “combination”, or “series”, or “pattern”; rather, the law could have simply provided that the commission of more than one offense resulting in the accumulation or acquisition of more than Fifty Million Pesos (P50,000,000.00) would constitute plunder.

II. THE ACCUSED WAS LIKEWISE DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO BE INFORMED WHEN HE WAS CONVICTED OF AN OFFENSE NOT INCLUDED IN THE INFORMATION