By JOSEPH G. LARIOSA

(© 2011 Journal Group Link International)

C HICAGO (jGLi) – On the day that he was leaving his prison cell in New Jersey last June 22, Michael Ray B. Aquino fulfilled one of his last personal obligations – dropping in a mailbox a seven-page letter addressed to the United States District Court for the Northern District of California. This was postmarked June 23.

The trouble is by the time the District Court received his “motion to dismiss” the $120-million civil suit filed against him and several others including former Philippine President Joseph Estrada, Sen. Panfilo M. Lacson, Aquino’s subordinate officer Glenn G. Dumlao, former Pagcor big boss Reynaldo Tenorio and businessman Dante Tan, he was already safely deported to Manila, Philippines on June 27.

When the court wrote back to Mr. Aquino on July 1 whether he wants the case assigned to Magistrate Judge Joseph C. Spero or to the U.S. District Court judge, the court’s letter to Mr. Aquino was marked “RTS (Returned To Sender) Discharged 6/22/11).”

A U.S. District Court derives its origin from Article III of the Constitution and holds office during good behavior. A Magistrate Court is established by Congress and holds office “for a set number of years, usually about 15.”

Caught off-guard by Mr. Aquino’s “motion to dismiss,” the lawyers of plaintiffs Carina Dacer, Sabina Dacer-Reyes, Amparo Dacer-Henson and Emily Dacer-Hungerford filed a “request for an extension of time to file response to defendant Michael Ray Aquino’s motion to dismiss.” Rodel E. Rodis, one of the lawyers, asked the court for a “one-week extension because their counsel, located in different cities, are still completing the research and the arguments for drafting the response to Defendant’s motion to dismiss.”

STILL SERVING OTHER DEFENDANTS

A tty. Rodis added that plaintiffs “are also completing efforts to serve the other Defendants in this case and will await any motion to dismiss that may be filed by other served Defendants.”

It is very likely that the court will have to forward its letter to Mr. Aquino inside the National Bureau of Investigation in Manila or at Manila City Jail, which is under the jurisdiction of the Regional Trial Court of Manila, Branch 118, which is trying the criminal double murder case filed against Aquino, and less than two dozen others, mostly police officers, for the kidnapping and murders of publicist Salvador “Bubby” Dacer and Dacer’s driver, Emmanuel Corbito.

The double murder case was the basis of the Philippine government to file an extradition request for Mr. Aquino, who was one of three senior police officers, including Cezar O. Mancao and Glenn G. Dumlao, who fled from the Philippines when a new government was taking over and was likely to prosecute them for the murders.

Apparently losing faith in the justice system in the Philippines, the Dacer survivors decided to file a $120-million civil suit against Aquino and other co-accused before the U.S. District Court in San Francisco as the Dacer survivors are residing in the United States and some of the accused, including Aquino and Tenorio, were said to be in the United States during the filing of the case.

Filing pro se (a lawyer for himself), Aquino told the U.S. District Court that civil action against him should be dismissed because the plaintiffs “did not reserve their right to institute a separate civil action” “before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation,” citing the Rules of Court of the Philippines (Part III Criminal Procedure Rule lll, Section 1).

Aquino said when the Plaintiffs “did not reserve their right to institute a separate civil action, the civil action is deemed instituted along with the criminal action.”

TVPA AND ATCA

As to the Torture Victim Protection Act (TVPA) and the Alien Torts Act (ATCA – 28 U.S.C   Section 1350) that were invoked by the Plaintiffs in filing the civil case, Aquino said “TVPA, Section 2 (b)” provides that a “court shall decline to hear a claim under this section if the claimant has not exhausted adequate  and available remedies in the place if which the conduct giving rise to the claim occurred,” quoting Sarei v. Rio Tinto PLC (No. 02-56256; D.C. NO. CV-00-11695-MMM) based on the U. S. Court of Appeals for the Ninth Circuit en banc decision.

Aquino added that as an exception in Sarei case, the plaintiffs can only invoke ATCA if they can “have adduced detailed declarations as to why they believe they would be in danger if they were forced to travel to (Manila) Port Moresby [for trial.]’ That exception does not obtain, in this case, however, because the Philippine government, has, in fact, cooperated with the Plaintiffs; it is the Philippine government, which filed the extradition request, to aid the prosecution of the criminal action in the court in Manila.”

Aquino said, “A hearing, undersigned submits, is not necessary, for the facts upon which a determination may be made [of whether or not local (Philippine) remedies have been exhausted], can be ascertained from records of sister courts. Undersigned, therefore, prays for a ruling without oral argument.

“The law (TVPA and ATCA) as well as Ninth Circuit precedent, is (sic) quiet clear; the only action in order in this case is a dismissal.”

Aquino signed his motion to dismiss on May 26, 2011.  

When Aquino was discharged from New Jersey prisons on June 22, he arrived at Los Angeles, California, on the same day and he boarded the Philippine Airlines flight for Manila on June 24 escorted by NBI agents to end his five years’ stay in prison for spying and his fight for his extradition to the Philippines.

The $120-million civil case has now been reassigned to Judge William Alsup. And a case management statement is due Aug. 25, 2001, and a case management conference is set for Sept. 1, 2011, at 11 a.m. before Judge Alsup in Courtroom 9, 19th Floor, San Francisco. # # #

Editor’s Note: To contact the author, please e-mail him at: (lariosa_jos@sbcglobal.net)