ZALDY NUEZ, COMPLAINANT, VS. ELVIRA CRUZ-APAO, RESPONDENT.

Zaldy Nuez versus Elvira Cruz-Apao

The Case

This is an administrative case for dishonesty and grave misconduct filed by Zaldy Nuez against Elvira Cruz-Apao, who served as Executive Assistant II in the office of the Acting Division Clerk of Court of the Fifteenth Division of the Court of Appeals. The complaint arose from the respondent's solicitation of One Million Pesos from the complainant in exchange for a speedy and favorable decision in his pending case before the Court of Appeals. The case matters because it is the Supreme Court's own statement, in a per curiam decision, of how it treats court personnel who peddle influence — and because it fixes the line between entrapment and instigation, and the evidentiary treatment of text messages in administrative proceedings.

Procedural History

The complainant first lodged a complaint with the Action Center of the television program Imbestigador of GMA Network, whose crew accompanied him to the Presidential Anti-Organized Crime Commission Special Projects Group in Malacañang, where he filed a complaint for extortion against the respondent. An entrapment operation by the Presidential Anti-Organized Crime Task Force followed on 28 September 2004 at the Jollibee Restaurant on the second floor of Times Plaza Building, corner of Taft and United Nations Avenue, Manila.

The respondent's apprehension prompted the then Presiding Justice of the Court of Appeals, Cancio Garcia, to issue an Office Order creating an ad hoc investigating committee tasked to conduct a thorough and exhaustive investigation and to recommend the proper administrative sanctions. The committee conducted hearings, issued a resolution dated 18 October 2004 finding a prima facie case of dishonesty and serious misconduct and recommending preventive suspension for ninety days, and on 28 January 2005 submitted its report to the new Presiding Justice, Romeo Brawner, recommending dismissal from service. The administrative matter was resolved by the Supreme Court en banc in a per curiam decision promulgated on 12 April 2005.

Facts

The complainant's illegal dismissal case against PAGCOR had been pending with the Court of Appeals for more than two years. The Civil Service Commission had ordered his reinstatement, but a writ of preliminary injunction and a temporary restraining order issued by the Court of Appeals in favor of PAGCOR prevented his return to work pending adjudication. Desiring an expeditious decision, he sought the assistance of the respondent in July 2004, having learned of her employment with the Court of Appeals from her sister, Magdalena David. They spoke first by telephone and then exchanged a series of text messages.

A week after their first conversation, the respondent told the complainant that a favorable and speedy decision was attainable, but that the person who was to draft the decision was asking for One Million Pesos. When he protested that he had no such money, she replied that such was how things were done, and that if he had no money, he should accept his situation. She refused to reduce the amount, admonishing him that they were not in a marketplace. She explained that the money would go to a male researcher, a lawyer in the Fifth Division where his case was pending, and that she would get no part of it unless the researcher chose to give her some. She even recounted a previous transaction in which a client paid only Eight Hundred Thousand Pesos of a pegged One Million Three Hundred Thousand Pesos, and refused a down payment arrangement because the client had not paid the balance after the decision came out. After reading his documents, she told him that he would win.

Instead of paying, the complainant sought the help of Imbestigador in August 2004 and filed a complaint for extortion. On 24 September 2004 he met the respondent in person at the same Jollibee, accompanied by Patricia Siringan, a researcher of the program who posed as his sister-in-law. The respondent confirmed that One Million Pesos would buy a favorable decision in about a month, but guaranteed nothing in the Supreme Court on appeal. On 28 September 2004 the entrapment was set. The complainant carried an unsealed brown envelope containing bundles of paper money and newspaper cut-outs, with ten authentic One Hundred Peso bills dusted with ultra-violet powder. The respondent arrived, appeared nervous and suspicious, repeatedly said she might be entrapped as shown on Imbestigador, and refused to receive the money on the spot, proposing instead that they ride a taxi and she receive it at the Court of Appeals. When she finally touched the envelope, the agents converged and invited her to the Western Police District headquarters. She tested positive for ultra-violet powder. That evening she called her immediate superior, Atty. Lilia Mercedes Encarnacion Gepty, tearfully confessed that she had asked for money for a case and was entrapped, and said she had merely tried her luck. At the hearings she maintained that the offer came from the complainant and that this was instigation, not entrapment.

Issues

• Whether or not the respondent is guilty of dishonesty and grave misconduct for soliciting One Million Pesos from the complainant in exchange for a favorable decision in his pending case.
• Whether or not the operation was a valid entrapment rather than instigation, such that the respondent may be held administratively liable.
• Whether or not the text messages exchanged between the parties are admissible in evidence against the respondent.

Applicable Provisions

Section 1, Canon I of the Code of Conduct for Court Personnel provides:

Court personnel shall not use their official position to secure unwarranted benefits, privileges or exemption for themselves or for others.

This is the provision the respondent violated by using her position in the Court of Appeals to offer a favorable decision for a price.

Section 2, Canon I of the same Code provides:

Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions.

This is the exact prohibition against the solicitation proved in this case.

Section 1 of the Incorporation of Other Rules of the same Code provides:

All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code.

This ties the Code to the broader civil service and constitutional standards of conduct invoked by the Court.

Section 1, Rule 2 of the Rules on Electronic Evidence provides:

Ephemeral electronic communication refers to telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained.

This classifies the text messages as ephemeral electronic communication.

Section 2, Rule 11 of the Rules on Electronic Evidence provides:

Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof.

This is the rule under which the complainant's testimony on the messages was admitted.

Ruling

On the first issue, the Court held the respondent guilty. The complainant proved by his testimony, corroborated by the text messages and by the disinterested testimony of Siringan, that the respondent solicited One Million Pesos in exchange for a favorable decision. The Court found her defense of bare denials and selective memory — admitting the innocuous messages and forgetting the incriminating ones — unworthy of belief, and gave weight to Atty. Gepty's testimony on the confession made immediately after the entrapment. By soliciting the amount, the respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the people's confidence in it, in violation of Sections 1 and 2 of Canon I of the Code of Conduct for Court Personnel.

On the second issue, the Court held that this was entrapment, not instigation. It drew the distinction in these terms:

In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the would-be defendant into the commission of the offense, and he himself becomes a co-principal.

Here the complainant and the law enforcers resorted to entrapment precisely because the respondent had already demanded the money. The Court found her claim that she met the complainant only to tell him to stop calling and texting her preposterous: an honest employee would simply have refused the calls and messages, or reported the matter to the Presiding Justice, instead of meeting him twice.

On the third issue, the Court held the text messages admissible. Being ephemeral electronic communications, they were proven by the testimony of the complainant, a party to them and with personal knowledge of their contents; the respondent admitted the number was hers; and she and her counsel signed and attested to their veracity. The Court added that in administrative cases technical rules of procedure and evidence are not strictly applied.

Doctrine

First, court personnel may not use their official position to secure unwarranted benefits, and may not solicit any gift, favor or benefit based on any explicit or implicit understanding that it shall influence their official actions, under Sections 1 and 2 of Canon I of the Code of Conduct for Court Personnel. Second, entrapment ensnares a lawbreaker already executing his plan, while instigation induces the would-be offender and makes the instigator a co-principal; where the demand originates from the respondent, the operation is entrapment. Third, ephemeral electronic communications such as text messages are proven by the testimony of a party to them or one with personal knowledge, and administrative cases are not bound by strict technical rules of evidence. Fourth, the conduct of everyone in the judiciary, from the presiding judge to the most junior clerk, must at all times be above suspicion and circumscribed with the heavy burden of responsibility.

Disposition

The Court found the respondent guilty of dishonesty and grave misconduct and dismissed her from the service, with the accessory penalties provided by law.

Remember This

Memorize the line that separates the two operations: entrapment snares a lawbreaker already executing his plan, while instigation induces the offender and makes the instigator a co-principal. Examiners use this case for the Code of Conduct for Court Personnel, for the admissibility of text messages in administrative proceedings, and for the rule that court personnel must steer clear of even the slightest suspicion.