In a Joint Resolution dated 10 July 2013, the Department of Justice Special Panel of Prosecutors, which was created under Department Order No. 963 dated 14 November 2012 to investigate the Aman Futures pyramid scheme, recommended the filing anew of an Information for Syndicated Estafa. (P.D. 1689) against respondents Manuel K. Amalilio, Fernando R. Luna, Lelian Lim Gan, Eduard L. Lim, Wilanie L. Fuentes, Naezelle M. Rodriguez, Lurix B. Lopez, Mohammad Hassan Mackno, Dimasara Jova, Samuel Co, Ian Madarang, and Priscilla Ann Fernandez Co.
This latest DOJ Resolution stemmed from two complaints – one filed by Samuel Co and the other by the National Bureau of Investigation (NBI) and three (3) private complainants, one of whom, Fabian Tapayan, Jr., also lodged a complaint for violation of R.A. 3019 (Anti-Graft and Corrupt Practices Act) against Samuel Co.
Finding that Samuel Co was himself an active-participant in the fraudulent scheme, his complaint was dismissed. Only the complaint filed by the NEI, et al., was found to have probable cause. On the other hand, Tapayan's complaint against Samuel Co was dismissed without prejudice, the jurisdiction thereon having been lodged with the Office of the Ombudsman.
It may be recalled that the Aman Group is a swindling syndicate which wronged the investing public through an investment scam known as "Ponzi Scheme”. The Aman Group registered a front company, the "Aman Futures Inc”, purportedly authorize to engage in future stocks trading, when in fact it is not authorized to do so by the Securities and Exchange Commission. The company accepted investments from over ten thousand investors, and in exchange, offered high interest rates in a short span of time. When the Aman Group found out that the NBI was conducting an investigation on the matter, the respondents refused to cash out the money of the investors, and they pretended that the said investment was automatically reinvested.
COMPLAINT FOR SYNDICATED ESTAFA
In finding for the existence of probable cause, the Panel ruled that the first element of syndicated estafa, which is the commission of estafa or other forms of swindling under Article 315, paragraph 2(a) of the Revised Penal Code, was shown to exist. Under said offense, there is estafa when (1) the accused defrauded another by means of deceit; and (2) damage or prejudice capable of pecuniary estimation is caused to the offended or third party.
The Panel stated that the second portion of Article 315, paragraph 2(a) is present because the investments made by complainants Ala, Tapayan, and Taha were never returned, hence, damages were suffered by the complainants in the amount of unrecouped investments. On the other hand, the component of defrauding another by means of deceit is revealed by the facts that complainants were induced to invest at Aman Futures Group PhiIs, Inc. in Pagadian City after being informed that their investments would earn high interest. However, as pointed out by the Panel, "at the time complainants made their investments, Aman did not possess the necessary license to engage in any business that would enable it to finance such high interests” More so, there is no evidence that Aman is actually engaged in any lucrative business. "Rather, Aman was organized for a fraudulent purpose, and that the promise of high interest rates was a mere sham meant only to entice complainants and other investors to part with their money". Therefore, the Panel held that clearly, fraud and deceit were employed upon complainants to convince them to invest.
The finding of probable cause was further bolstered by the direct involvement of the following respondents in the operation of Aman. It was never disputed that it was respondent Amalilio who organized the operation of Aman in Pagadian City; caused the registration of Aman; controlled the bank accounts; and approved the payment to big investors. As to respondent Luna, evidence reveals that he directly received payments from investors; personally gave directives to Aman employees and managed the affairs of Aman; and investments were deposited to his bank account. As vice-president of Aman, respondent Gan had the authority to withdraw from the accounts of Aman; assisted in the formation of the corporation and its financial management. Together with her brother respondent Lim, they went to the bank everyday to transfer and/or deposit checks issued by Amalilio to different accounts. Respondents Fuentes and Rodriguez deposited to the account of investors monies that were initially deposited to their personal bank accounts. Respondent Lopez, for his part, handled the accounts that were initially handled by Amalilio.
While respondent Samuel Co may claim that he is also a victim of defraudation, the Panel ruled that his overt acts illustrate his active participation in the operation of Aman, viz., certification issued by Amalilio plainly declares him as an agent of Aman; offer to pay back the investments of complainant Tapayan. In the case of respondent Priscilla Co, she told complainant Tapayan that he would not be able to receive his interest; was present in. the press conference held to explain the problems encountered in Aman’s operations. As for respondent Madarang, he accepted investments from the public in behalf of Samuel Co and Priscilla Co.
The second element of the crime charged - estafa or swindIing must be committed by a syndicate - is also satisfied because respondents have all shown a unity of purpose and design by their participation in the formation and operation of Aman, having acted in conspiracy with one another, and are deemed a syndicates under P.D. No.1689.
The third and final element of estafa, which provides that the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, 'samahang nayon(s)', or farmers association, or of funds solicited by corporations/associations from the general public, is without doubt present in this case. The Pane stated that the defraudation resulted in the misappropriation of funds solicited by Aman, from the general public through the respondents.
COMPLAINT FOR VIOLATION OF SECTION 3(e), RA 3019
The Resolution dismissed the complaint filed by Tapayan because under our laws, a complaint for violation of R.A. 3019 falls exclusively within the jurisdiction of the Office of the Ombudsman.
COMPLAINT OF RESPONDENT CO
Proceeding from the foregoing discussion, the Panel disagreed with respondent Samuel Co's claim that he became a victim of fraud perpetuated through Aman. Given his participation in the operations of Aman as an agent, by collecting and/or receiving investments from numerous investors, the Panel resolved that Samuel Co participated in the fraud committed against the complainants.