Before: REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN,* District Judge.
Juan Paul Robertson (Robertson) appeals his jury convictions for conspiracy and possession of cocaine with intent to distribute (Counts One through Four) and RICO (Count Six). We affirm the convictions but vacate the sentences and remand for resentencing.
We must now address the sentencing issue not previously reached.
The district court sentenced Robertson to concurrent terms totalling twenty years under pre-Guidelines law. The Government cross-appealed the sentence, contending that because Robertson's RICO violation bridged the Guidelines' effective date of November 1, 1987, he should have been sentenced under the Guidelines.
A continuing course of criminal conduct which starts before November 1, 1987, and continues after that date is a so-called "straddle" offense properly sentenced under the Guidelines. See United States v. Kohl, 972 F.2d 294, 298 (9th Cir. 1992) (drug conspiracy); United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992) (same), cert. denied, 507 U.S. 944, 113 S. Ct. 1350, 122 L. Ed. 2d 731 (1993); United States v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989) (failure to appear), cert. denied, 495 U.S. 930, 110 S. Ct. 2168, 109 L. Ed. 2d 497 (1990).
In Kohl, we rejected an ex post facto claim based on our finding that many of the overt acts in the drug conspiracy had occurred after November 1, 1987. 972 F.2d at 298. The Government could have charged Kohl with conspiracy based only on events occurring after November 1, 1987. Thus, the fact that some of the conspirators' conduct occurred before November 1, 1987, did not create an ex post facto problem. Id.
In Castro, we noted that conspiracy is an offense that continues "until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy." 972 F.2d at 1112. The conspiracy continued in that case until the seizure of the cocaine and the arrest of the conspirators, which was after November 1, 1987. Id. There, as in Kohl, the crime was complete based only on conduct occurring after the effective date of the Guidelines.
This circuit has not yet decided whether a RICO violation is a continuing offense for purposes of "straddle" sentencing. Other circuits have held that the Sentencing Guidelines apply where the pattern of racketeering activity begins before and continues after November 1, 1987. See, e.g., United States v. Moscony, 927 F.2d 742, 754 (3d Cir.), cert. denied, 501 U.S. 1211, 111 S. Ct. 2812, 115 L. Ed. 2d 984 (1991); United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990). The Third Circuit in Moscony said that RICO is a "continuing offense directly analogous to the crime of conspiracy." 927 F.2d at 754 (quotations omitted).
However, in both Moscony and Cusack, the RICO charge was brought under 18 U.S.C. § 1962(c) which criminalizes the conduct of an enterprise through a pattern of racketeering activity. In that situation, if the defendant conducted the enterprise in violation of that section both before and after November 1, 1987, no ex post facto violation would occur in sentencing under the Guidelines. As the Fourth Circuit pointed out in Cusack, " [the] Sentencing Guidelines did not become law after the commission of the RICO crime, but instead took effect during the life of the continuing offense." 901 F.2d at 32.
The analytical framework of a charge brought under 18 U.S.C. § 1962(a) differs from one brought under Sec. 1962(c).2 Unlike Sec. 1962(c), Sec. 1962(a) prohibits not the engagement in racketeering acts to conduct an enterprise affecting interstate commerce, but rather the use or investment of the proceeds of racketeering acts to acquire, establish or operate such an enterprise. See Nugget Hydroelectric v. Pacific Gas & Elec. Co., 981 F.2d 429, 437 (9th Cir. 1992) (in a civil action under 18 U.S.C. § 1964(c) claiming a violation of Sec. 1962(a), the plaintiff must allege injury resulting from use or investment of racketeering income), cert. denied, --- U.S. ----, 113 S. Ct. 2336, 124 L. Ed. 2d 247 (1993). And see United States v. Vogt, 910 F.2d 1184, 1194 (4th Cir. 1990) (in criminal action under 18 U.S.C. § 1962(a), the Government must show use or investment of racketeering proceeds), cert. denied, 498 U.S. 1083, 111 S. Ct. 955, 112 L. Ed. 2d 1043 (1991). We conclude that a RICO violation under Sec. 1962(a) may constitute a continuing offense for purposes of the straddle analysis if the Government demonstrates use or investment of proceeds in acquiring or operating the enterprise both before and after November 1, 1987.
Here, the Government charged only one act occurring after November 1, 1987, as a racketeering act which would bring the sentence under the Guidelines. Robertson instructed Sue Canada to deposit cash from a safety deposit box into the bank in amounts of less than ten thousand dollars. She did this on a number of occasions, the last of which was on November 2, 1987. This entire course of conduct, involving $102,000, was charged as structuring of deposits in violation of Sec. 1956(a) (1) (B).
In support of its argument that sentence should have been imposed pursuant to the Guidelines, the Government points out that Robertson applied for a bank loan in June 1988. Robertson described himself in the application as president of Robertson Mining Company of Alaska and used as collateral the same home he used to obtain the 1986 loan. This may tend to show the continuing existence of the RICO enterprise in the face of Robertson's claim that he had divested himself of his interest in the mine when he divorced Eddra McCarthy. However, it does not show that income from the racketeering activity was invested or used in the operation of the mine on or after November 1, 1987.
Under the analysis in Kohl, the Government has to show that a complete offense could be charged based on conduct occurring after November 1, 1987, in order to avoid an ex post facto problem in sentencing under the Guidelines. See also Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216 ("It is settled ... that any statute ... which makes more burdensome the punishment for a crime, after its commission ... is prohibited as ex post facto."). Although proof of a pattern of racketeering activity is an essential part of a RICO prosecution, predicate acts do not by themselves constitute a violation of Sec. 1962(a), which requires a further showing of use or investment in the enterprise after the Guidelines date.
The Government has failed to sufficiently tie the post-November 1 conduct to an investment or operation of the RICO enterprise. The Government only charged one act after November 1, 1987, as a racketeering act that would trigger application of the Guidelines. The Government has not argued, or pointed to any evidence in the record which shows, that Robertson used the money from the November 2, 1987, deposit to directly or indirectly run the gold mine. Thus, the Government has failed to show that Robertson used or invested the proceeds of racketeering acts to acquire, establish or operate the gold mine both before and after November 1, 1987. Accordingly, the judge acted properly in rejecting the Government's request that Robertson be sentenced under the Guidelines.
We AFFIRM all the convictions, but because the district court did not comply with Fed. R. Crim. P. 32, we VACATE the sentences and REMAND for resentencing.
18 U.S.C. § 1956(a) (1) (B).


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GARY TAVARES v. MASHPEE 130 SHOPS, INC.
Present: Merrick, McCallum [Note 1] and Singh, JJ.
Jeremy M. Carter for the plaintiff.
Richard D. Bickelman for the defendant.
MERRICK, J. The plaintiff's appeal was dismissed by the court after it had been pending for more than two years. The plaintiff has appealed that dismissal. We affirm the dismissal.
Plaintiff Gary Tavares ("Tavares") brought this action in 2005 to recover a deposit he had made under an agreement to purchase real estate from the defendant, Mashpee 130 Shops, Inc. ("Mashpee"). The principal issue was whether Tavares had used sufficiently diligent efforts to obtain permits so as to be entitled to the return of his deposit. After a jury waived trial held over several days in both the Falmouth and Wareham District Courts, a judgment in favor of Mashpee was entered on January 10, 2007. Tavares filed a notice of appeal of that judgment on January 17, 2007.
After the time had expired for Tavares to select and proceed in accordance with any method of appeal to this Appellate Division, under Rules 8A, 8B, or 8C of the Dist./Mun. Cts. R. A. D. A., Mashpee properly moved for dismissal of the appeal. Tavares countered with a motion for additional time to file an "appeal on the record of proceedings," a single page document that consists of only a single line stating that Tavares would proceed under Rule 8C. On March 20, 2007, Mashpee's motion to dismiss was denied, and Tavares was granted leave to submit a late Rule 8C designation.
The transcript prepared from the trial tapes obtained by Tavares from the Falmouth District Court was filed in Falmouth on April 26, 2007, and the clerk immediately notified the parties in compliance with Rule 8C(g). But it was then discovered that the transcript did not include testimony taken on one of the trial days in Wareham. Tavares ordered the one day recording directly from the Wareham District Court, and filed a motion in Falmouth for a stay of the appeal. A motion judge (not the trial judge) granted the stay on May 31, 2007.
Although the Wareham recording was of only a single day of trial, it took Tavares almost three months, until August 28, 2007, to notify the court that the new transcript prepared from that recording was also incomplete. On the same day, the motion judge, apparently sua sponte in response to an inquiry through the clerk as to the status of the stay, ordered that the stay granted on May 31, 2007 was to remain in effect "until the entire transcript is received and transcribed by counsel." As indicated on the trial court docket, there was no further activity in the case until Mashpee filed another motion to dismiss Tavares' appeal on November 19, 2008. By that date, almost one and one half years had elapsed since the stay of appeal had been ordered.
Consideration of Mashpee's November 19, 2008 motion to dismiss the appeal was continued for nearly two months to January 12, 2009. After a hearing on that date, a second motion judge issued a memorandum of decision dismissing Tavares' appeal. As noted, Tavares filed this appeal of the January 12, 2009 dismissal order.
The only evidence missing from the trial recording Tavares obtained from the Wareham District Court was a portion of the testimony of Tavares' expert, Doug Bill ("Bill"). Counsel for both parties engaged in a series of correspondence over a fourteen month period to reach an agreement as to the missing fragment of Bill's testimony. Tavares' attorney claimed that Mashpee's counsel was not cooperative. Mashpee's counsel protested that Tavares' counsel was proposing statements of testimony that had never been given, and was needlessly delaying the appeal.
It is important to note that the disputed portion of Bill's testimony was entirely unrelated to anything substantive, relevant, or based on Bill's expertise. Indeed, Tavares needlessly delayed perfecting his appeal by demanding to include in the record nothing more than Bill's testimony about a statement made to Bill by Tavares himself about a statement made to Tavares by someone employed by the town of Mashpee about whether the project was not subject to review by the Cape Cod Commission [Note 3] Tavares' own testimony was recorded and was the best evidence of any statements made to him by the town of Mashpee, assuming they were otherwise admissible. Tavares' statement to Bill on the subject would not have been admissible to prove either an exemption from review by the Cape Cod Commission, or the source and content of a communication by a third party to Tavares.
for such settlement by the trial judge is, in fact, set forth in Rule 8C (e), [Note 4] the method of appeal chosen by Tavares, and is nearly identical to a settlement procedure in Mass. R. A. P., Rule 8(c) for appeals to the Appeals Court and Supreme Judicial Court. The specified process is straightforward and pragmatic, requiring the appellant to submit his statement of the evidence, prepared from the best source available to him, including his own recollection, together with the opposing party's objections and proposed amendments, to the trial court for settlement. [Note 5] Alternatively, Tavares might have proceeded under Rule 8C(O, captioned "Correction or Modification of the Record," that states, in relevant part, that "[i]f anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation or the trial court or the Appellate Division ... may direct that the omission or misstatement be corrected." Although Tavares had both his own attorney's proposed statement of the missing testimony and Mashpee's counsel's objections, he failed to submit them to the trial court for settlement or to take any action to resolve this impediment to the perfection of his appeal. His inaction continued even during the two months that elapsed between the filing and hearing of Mashpee's ultimately successful motion to dismiss his appeal.
Tavares from his obligation to expedite the appeal while the stay was in effect. "It is the appellant's responsibility to have the transcript prepared, and to include in the appendix an accurate and complete trial record upon which the issues presented on appeal may be satisfactorily reviewed." Harvard Univ. v. Goldstein, 1999 Mass. App. Div. 67 , 68, citing, inter alia, Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807 , 811 (1992). "[T]he responsibility for expediting appeals is `squarely on the appellant."' McCarthy v. O'Connor, 398 Mass. 193 , 199 (1986), quoting Mailer v. Mailer, 387 Mass. 401 , 407 (1982).
Mashpee's motion to dismiss Tavares' appeal was addressed to the second motion judge's discretion. See Arequipeno v. Hall, 2000 Mass. App. Div. 97 , 99; Georgantis v. Star Mkt. Cos., 2000 Mass. App. Div. 77 , 78. It was within the permissible purview of that discretion for the second motion judge to reconsider and, in allowing the dismissal motion, effectively terminate the stay of appeal allowed one and one half years earlier. Given the length of Tavares' delay, the absence of any effort by him to submit the dispute over the missing portion of Bill's testimony to the trial judge or the Appellate Division, and the collateral nature and borderline admissibility of that testimony that Tavares claimed was necessary to his appeal, we cannot say that the second motion judge abused his discretion in allowing Mashpee's motion to dismiss Tavares' appeal. See Crystal Constr Corp. v. Hartigan, 56 Mass. App. Ct. 324 , 331 n.5 (2002).
Finally, Tavares argues that the appeal should not have been dismissed because 1) the delay was also caused by Mashpee's lack of cooperation, and 2) the motion judge should have referred the dispute about the trial testimony to the trial judge. The answer to both these arguments is the same. Tavares cannot impose upon others either his own obligations as appellant, or his own failure, to perfect his appeal with reasonable dispatch.
The allowance of the defendant's motion to dismiss the plaintiffs appeal is affirmed.
[Note 1] The Honorable Paul J. McCallum participated in the hearing of this appeal, but resigned from the Appellate Division prior to the issuance of this opinion.
[Note 2] Presiding Justice H. Gregory Williams recused himself from any appellate consideration of this case, and took no part in this decision.
[Note 3] The letters between counsel after the stay variously asserted that Tavares told Bill he had a letter, never produced at trial, to the effect that the project was not subject to Cape Cod Commission review; that Tavares told Bill he had a written telephone message from his secretary about a call from the town to Mashpee to that effect; or that Tavares told Bill that he had had a conversation with a town of Mashpee employee to that effect Any one of these proposed statements of "totem pole" hearsay should have been excluded, would have been, at best, of marginal and circumscribed probity, and of very limited, if any, relevance to Tavares' appeal.
[Note 4] Rule 8C(e) states: "Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within thirty days after the Appeal on the Record of Proceedings is filed, file a statement of the evidence or proceedings from the best available means, including his or her recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the trial court for settlement and approval and as settled and approved shall be included in the case file and, as necessary, included in the appellant's appendix to the brief."
[Note 5] Rule 8C(e) requires that the opposing materials be submitted to the trial judge within 30 days of the filing of the appellant's appeal on the record of proceedings. The reason is that in most cases, the unavailability of a report or transcript is known to the parties at the commencement of the appeal. While Tavares became aware of Bill's missing testimony at a later stage in the Rule 8C process, nothing in the rule would have prevented his submission of the contested testimony to the trial judge under this rule or, as indicated below, under Rule 8C(f).

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§ 122.020 Prohibited Acts by Elected and Appointed Public Officials and Employees.
§ 122.030 Additional Prohibited Acts by Certain Elected and Appointed Public Officials and Employees — Exceptions.
§ 122.040 Contributions Not to Be Converted to Personal Use — Exceptions.
§ 122.050 Interest in Measure, Bill, or Ordinance to Be Recorded — Financial Interest Statement.
§ 122.060 Discharge and Discrimination Prohibited, Reasons — Reinstatement.
§ 122.070 Conflict of Interest — Penalties.
§ 122.080 Declaration of Policy.
§ 122.090 Conflicts of Interest.
§ 122.110 Filing of Reports.
§ 122.120 Reports — When to Be Filed.
Section 122.020 Prohibited Acts by Elected and Appointed Public Officials and Employees.
Section 122.030 Additional Prohibited Acts by Certain Elected and Appointed Public Officials and Employees — Exceptions.
Section 122.040 Contributions Not to Be Converted to Personal Use — Exceptions.
Section 122.050 Interest in Measure, Bill, or Ordinance to Be Recorded — Financial Interest Statement.
Section 122.060 Discharge and Discrimination Prohibited, Reasons — Reinstatement.
Section 122.070 Conflict of Interest — Penalties.
Section 122.080 Declaration of Policy.
Section 122.090 Conflicts of Interest.
Section 122.110 Filing of Reports.
Section 122.120 Reports — When to Be Filed.
Any proceeding in which a record of the proceedings may be kept and maintained as a public record at the request of either party by a court reporter, notary public or other person authorized to keep such record by law or by any rule or regulation of the agency conducting the hearing; or from which an appeal may be taken directly or indirectly, or any proceeding from the decision of which any party must be granted, on request, a hearing de novo; or any arbitration proceeding; or a proceeding of a personnel review board of a political subdivision; or an investigative proceeding initiated by an official, department, division, or agency which pertains to matters which, depending on the conclusion of the investigation, could lead to a judicial or administrative proceeding being initiated against the party by the official, department, division or agency.
A corporation, association, firm, partnership, proprietorship, or business entity of any kind or character.
Any trust in which he/she is a trustee or settlor or in which he/she or his/her spouse or dependent child whether singularly or collectively is a beneficiary or holder of a reversionary interest of ten percent (10%) or more of the corpus of the trust.
The Missouri Ethics Commission established in Section 105.955 RSMo.
All information whether transmitted orally or in writing which is of such a nature that it is not, at that time, a matter of public record or public knowledge.
The governing body of the political subdivision with a general operating budget in excess of one million dollars.
A state commission or board.
A department, division, or agency director.
A judge vested with judicial power by Article V of the Constitution of the State of Missouri.
Any commission empowered by interstate compact.
The president pro tem of the senate.
A board of regents or board of curators of a state institution of higher education.
All children, stepchildren, foster children and wards under the age of eighteen (18) residing in his/her household and who receive in excess of fifty percent (50%) of their support from him.
Shall include any political subdivision of the state, and any special district or subdistrict.
A state tax return or a document or other record maintained for public inspection without limitation on the right of access to it and a document filed in a juvenile court proceeding.
Ownership by the individual, his/her spouse, or his/her dependent children, whether singularly or collectively, directly or indirectly, of ten percent (10%) or more of any business entity, or of an interest having a value of ten thousand dollars ($10,000.00) or more, or the receipt by an individual, his/her spouse or his/her dependent children, whether singularly or collectively, of a salary, gratuity, or other compensation or remuneration of five thousand dollars ($5,000.00), or more, per year from any individual, partnership, organization, or association within any calendar year.
Any interest in a measure, bill, order or ordinance which results from a substantial interest in a business entity.
Use his/her decision-making authority for the purpose of obtaining a financial gain which materially enriches himself, his/her spouse or dependent children by acting or refraining from acting for the purpose of coercing or extorting from another anything of actual pecuniary value.
Perform any service for any agency of the City over which he/she has supervisory power for receipt or payment of any compensation, other than of the compensation provided for the performance of his/her official duties, in excess of five hundred dollars ($500.00) per annum, except on transactions made pursuant to an award on a contract let or sale made after public notice and competitive bidding, provided that the bid or offer is the lowest received.
Sell, rent or lease any property to any agency of the City over which he/she has supervisory power and received consideration therefor in excess of five hundred dollars ($500.00) per year unless the transaction is made pursuant to an award on a contract let or sale made after public notice and in the case of property other than real property, competitive bidding, provided that the bid or offer accepted is the lowest received.
Participate in any matter, directly or indirectly, in which he/she attempts to influence any decision of any agency of the City over which he/she has supervisory power, when he/she knows the result of such decision may be the acceptance of the performance of a service or the sale, rental, or lease of any property to that agency for consideration in excess of five hundred dollars ($500.00) value per annum to him, to his/her spouse, to a dependent child in his/her custody or to any business with which he/she is associated unless the transaction is made pursuant to an award on a contract let or sale made after public notice and in the case of property other than real property, competitive bidding, provided that the bid or offer accepted is the lowest received.
Perform any services during the time of his/her office or employment for any consideration from any person, firm or corporation, other than the compensation provided for the performance of his/her official duties, by which service he/she attempts to influence a decision of any agency of the City over which he/she has supervisory power.
Perform any service for consideration, during one (1) year after termination of his/her office or employment, by which performance he/she attempts to influence a decision of any agency of the City over which he/she had supervisory power, except that this provision shall not be construed to prohibit any person from performing such service and receiving compensation therefor, in any adversary proceeding or in the preparation or filing of any public document.
Perform any service for any consideration for any person, firm or corporation after termination of his/her office or employment in relation to any case, decision, proceeding or application with respect to which he/she was directly concerned or in which he/she personally participated during the period of his/her service or employment.
Defray reasonable costs of personal services performed for the campaign except by the candidate.
Defray any ordinary and necessary expenses incurred in connection with his/her duties as a holder of elective office.
Defray any expenses associated with the duties of a candidacy or of elective office pertaining to the entertaining of or providing social courtesies to constituents, professional associations, or other holders of elective office.
Return any contribution to the person who made the contribution to the candidate or holder of elective office.
Make an unconditional gift which is fully vested to any political organization or candidate committee, or any charitable, fraternal or civic organizations or other associations formed to provide for some good in the order of benevolence, provided that such candidate, former candidate or holder of elective office has no interest, office or position of employment in such organization.
Upon the death of the candidate, former candidate or holder of elective office who received such contributions, all contributions must be disposed of according to this Section and any funds remaining after final settlement of the candidate's decedent's estate, or if no estate is opened, then twenty-four (24) months after the candidate's death, will escheat to the State of Missouri.
The Mayor or any member of the Board of Aldermen who has a substantial personal or private interest in any measure, bill, order or ordinance proposed or pending before the Board of Aldermen, shall, before he/she passes on the measure, bill, order or ordinance, file a written report of the nature of the interest with the City Clerk and such statement shall be recorded in the appropriate journal or other record of proceedings of the Board of Aldermen.
The Mayor or any member of the Board of Aldermen shall be deemed to have complied with the requirements of this section if he/she has filed, at any time before he/she passes on such measure, bill, order or ordinance, a financial interest statement pursuant to Sections 105.483 to 105.492, RSMo., which discloses the basis for his/her substantial personal or private interest or interests that he/she may have therein. Any such person may amend his/her financial interest statement to disclose any subsequently acquired substantial interest at any time before he/she passes on any measure, bill, order or ordinance, and shall be relieved of the provisions of Subsection (A) of this Section.
A person is requested by the Commission to participate in an investigation, hearing, or inquiry held by the Commission or any related court action.
This Subsection shall not apply to a person acting on behalf of a person who knowingly or recklessly makes a false report.
A person who alleges a violation of Subsection (A) of this Section may bring a civil action for appropriate injunctive relief, or actual damages, or both.
A court, in rendering a judgment in an action brought pursuant to this Section, shall order, as the court considers appropriate, reinstatement, of the person, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award such person all or a portion of the costs of litigation, including reasonable attorney's fees and witness fees, if the court determines that the award is appropriate.
Any person who violates the provisions of this Article shall upon conviction thereof, be punished as provided in Sections 100.160 — 100.180 of this Code.
The proper operation of municipal government requires that public officials and employees be independent, impartial and responsible to the people; that government decisions and policy be made in the proper channels of the governmental structure; that public office not be used for personal gain; and that the public have confidence in the integrity of its government. In recognition of these goals, procedures for disclosure by certain officials and employees of private financial or other interests in matters affecting the City is hereby readopted.
The Mayor or any member of the Board of Aldermen who has a substantial personal or private interest, as defined by State law, in any bill shall disclose on the records of the Board of Aldermen the nature of his/her interest and shall disqualify themselves from voting on any matters relating to this interest.
Each elected official, the Chief Administrative Officer, the Chief Purchasing Officer, and the General Counsel (if employed full-time) shall disclose the following information by May first (1st) if any such transactions were engaged in during the previous calendar year.
The reports, in a format which is on file in the City Clerk's office, shall be filed with the City Clerk and with the Missouri Ethics Commission. The reports shall be available for public inspection and copying during normal business hours.
The financial interest statements shall be filed at the following times, but no person is required to file more than one (1) financial interest statement in any calendar year.


1 tn The words “The Lord told Jeremiah” are not in the text. They are supplied in the translation here to indicate the shift in topic and the shift in addressee (the imperative “tell” is second singular). The introduction supplied in the translation here matches that in v. 30 where the words are in the text.
2 tn It is unclear whether this is a family name or a place name. The word occurs nowhere else in the Hebrew Bible.
4 tn Heb “Tell Shemaiah the Nehelamite, ‘Thus says Yahweh of armies the God of Israel….” The indirect quotation is used in the translation to avoid the complexity of embedding a quotation within a quotation.
5 sn Jer 29:24-32 are concerned with Jeremiah’s interaction with a false prophet named Shemaiah. The narrative in this section is not in strict chronological order and is somewhat elliptical. It begins with a report of a message that Jeremiah appears to have delivered directly to Shemaiah and refers to a letter that Shemaiah sent to the priest Zephaniah encouraging him to reprimand Jeremiah for what Shemaiah considered treasonous words in his letter to the exiles (vv. 24-28; compare v. 28 with v. 5). However, Jeremiah is in Jerusalem and Shemaiah is in Babylon. The address must then be part of a second letter Jeremiah sent to Babylon. Following this the narrative refers to Zephaniah reading Shemaiah’s letter to Jeremiah and Jeremiah sending a further letter to the captives in Babylon (vv. 29-32). This is probably not a third letter but part of the same letter in which Jeremiah reprimands Shemaiah for sending his letter to Zephaniah (vv. 25-28; the same letter referred to in v. 29). The order of events thus is: Jeremiah sent a letter to the captives counseling them to settle down in Babylon (vv. 1-23). Shemaiah sent a letter to Zephaniah asking him to reprimand Jeremiah (vv. 26-28). After Zephaniah read that letter to Jeremiah (v. 29), Jeremiah wrote a further letter to Babylon reprimanding him (vv. 25-28, 31) and pronouncing judgment on him (v. 32). The elliptical nature of the narrative is reflected in the fact that vv. 25-27 are part of a long causal sentence which sets forth an accusation but has no corresponding main clause or announcement of judgment. This kind of construction involves a rhetorical figure (called aposiopesis) where what is begun is not finished for various rhetorical reasons. Here the sentence that is broken off is part of an announcement of judgment which is not picked up until v. 32 after a further (though related) accusation (v. 31b).
6 tn Heb “In your [own] name.” See the study note on 23:27 for the significance of this idiom.
7 tn Heb “letters.” Though GKC 397 §124.b, n. 1 denies it, this is probably a case of the plural of extension. For a similar usage see Isa 37:14 where the plural “letters” is referred to later as an “it.” Even if there were other “letters,” the focus is on the letter to Zephaniah.
8 sn According to Jer 52:24 and 2 Kgs 25:18 Zephaniah son of Maaseiah was second in command to the high priest. He was the high ranking priest who was sent along with a civic official to inquire of the Lord’s will from Jeremiah by Zedekiah on two separate occasions (Jer 21:1; 37:3).
10 tn The words “In your letter you said to Zephaniah” are not in the text: Heb “you sent a letter to…, saying.” The sentence has been broken up to conform better to contemporary English style and these words have been supplied in the translation to make the transition to the address to Zephaniah in vv. 26-28.
11 tn Heb “in place of Jehoiada the priest.” The word “the priest” is unnecessary to the English sentence.
12 tc Heb “The Lord has appointed you priest in place of the priest Jehoiada to be overseer in the house of the Lord for/over.” The translation is based on a reading presupposed by several of the versions. The Hebrew text reads “The Lord has…to be overseers [in] the house of the Lord for/over.” The reading here follows that of the Greek, Syriac, and Latin versions in reading פָּקִיד בְּבֵית (paqid bÿvet) in place of פְּקִדִים בֵּית (pÿqidim bet). There has been a confusion of the ם (mem) and בּ (bet) and a transposition of the י (yod) and ד (dalet).
13 sn The Hebrew term translated lunatic applies to anyone who exhibits irrational behavior. It was used for example of David who drooled and scratched on the city gate to convince Achish not to arrest him as a politically dangerous threat (1 Sam 21:14). It was often used contemptuously of the prophets by those who wanted to play down the significance of their words (2 Kgs 9:11; Hos 9:7 and here).
14 tn The verb here is a good example of what IBHS 431 §26.2f calls the estimative-declarative reflexive where a person presents himself in a certain light. For examples of this usage see 2 Sam 13:5; Prov 13:7.
15 tn See the translator’s note on 20:2 for this word which only occurs here and in 20:2-3.
16 tn This word only occurs here in the Hebrew Bible. All the lexicons are agreed as seeing it referring to a collar placed around the neck. The basis for this definition are the cognate languages (see, e.g., HALOT 958-59 s.v. צִינֹק for the most complete discussion).
17 tn Heb “So why have you not reprimanded Jeremiah…?” The rhetorical question functions as an emphatic assertion made explicit in the translation.
18 tn Heb “For he has sent to us in Babylon, saying….” The quote, however, is part of the earlier letter.
19 sn See v. 5.
23 sn Compare the same charge against Hananiah in Jer 28:16 and see the note there. In this case, the false prophesy of Shemaiah is not given but it likely had the same tenor since he wants Jeremiah reprimanded for saying that the exile will be long and the people are to settle down in Babylon.


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along with 25 May 2018, the existing provisions on the protection of personal data change. The General Regulation of 27 April 2016 on the protection of personal data (hereinafter “RODO”) becomes applicable. Therefore, we are providing you with this information to notify about how we process your personal data.
The administrator, that is the entity deciding on the purposes and means of processing personal data is Streamsoft sp. z o. o. sp. k. seated at Al. Wojska Polskiego 11, 65-077 Zielona Góra (hereinafter referred to as “Streamsoft”). We are a Polish producer and supplier of ERP systems and programs supporting the work of small enterprises and accounting offices.
Streamsoft sp. z o. o. sp. k.
Enabling the performance of the contract for our partners who share with us their clients' data in order to provide them with a license. Art. 6 par. 1 letter f RODO Where the legitimate aim is to enable the clients of our partners to use our services based on the license granted.
Claims related to the concluded contract. Art. 6 par. 1 letter f RODO Debt collection and conducting court proceedings, and then enforcement proceedings.
Art. 6 par. 1 letter f RODO Having information about the statistics of our activities, which allows us to improve our business.
Carrying out marketing activities of own products and services without the use of electronic communication means. Art. 6 par. 1 letter f RODO Conducting marketing activities promoting the company.
Carrying out marketing activities of own products and services without the use of electronic communication means. Art. 6 par. 1 letter f RODO, whereby these actions are carried out by Streamsoft only on the basis of possessed consents due to other applicable regulations. Conducting marketing activities promoting the company.
Handling applications received through contact form, other proposals, including ensuring accountability (demonstration of compliance by Streamsoft with the obligations arising from the law) Art. 6 par. 1 letter f RODO Responding to requests and inquiries received through contact form or in another way, including storing sensitive requests and responses to preserve the accountability principle.
As an administrator, we are obliged to store documents containing data for periods indicated by law or it is necessary for the proper functioning of our company and for maintaining the accountability principle.
Settlement documents Books and related documents until the end of the limitation period of tax liability, unless the tax laws provide otherwise.
Documents related to the suretyship Documents regarding suretyship and complaints processed by 1 year after the suretyship period or settlement of the complaint.
- In case of data processing on the basis of legally valid purpose of Streamsoft – until submission of objections.
Data transmitted using the contact form Over a period of three years, to maintain the accountability principle.
Every person to whom the data relates has the right to access their data and the right to rectify, delete, limit processing, the right to data transfer, the right to object, the right to withdraw consent at any time without affecting the legality of processing, which was made on the basis of consent before its withdrawal (if the processing is carried out on the basis of consent).
In addition, when the processing we do violates the provisions of RODO, you have the right to lodge a complaint to the supervisory body, ie the Chairman of the Office for Personal Data Protection.
Providing data is necessary to conclude contract with Streamsoft. In the remaining scope, providing data is voluntary.
Personal data will not be processed in an automated manner (including in the form of profiling) in such way that as a result of such automated processing any decisions could be made, other legal effects would be caused or otherwise significantly affect our clients.

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G.R. No. 172384 - Erminda F. Florentino v. Superv Alue Inc.
ERMINDA F. FLORENTINO, Petitioner, v. SUPERVALUE, INC., Respondent.
Considering that petitioner already committed several breaches of contract, the respondent thus opted not to renew its Contracts of Lease with her anymore. The security deposits were made in order to ensure faithful compliance with the terms of their lease agreements; and since petitioner committed several infractions thereof, respondent was justified in forfeiting the security deposits in the latter's favor.
WHEREFORE, premises duly considered, judgment is hereby rendered ordering the [herein respondent] to pay [herein petitioner] the amount of P192,000.00 representing the security deposits made by the [petitioner] and P50,000.00 as and for attorney's fees.
The [respondent] is likewise ordered to return to the [petitioner] the various properties seized by the former after settling her account with the [respondent].
Lastly, the [respondent] may choose either to reimburse the [petitioner] one half (1/2) of the value of the improvements introduced by the plaintiff at SM Megamall should [respondent] choose to appropriate the improvements to itself or require the [petitioner] to remove the improvements, even though the principal thing may suffer damage thereby. [Petitioner] shall not, however, cause anymore impairment upon the said leased premises than is necessary.
The other damages claimed by the plaintiff are denied for lack of merit.
Aggrieved, the respondent appealed the adverse RTC Judgment to the Court of Appeals.
In a Decision23 dated 10 October 2003, the Court of Appeals modified the RTC Judgment and found that the respondent was justified in forfeiting the security deposits and was not liable to reimburse the petitioner for the value of the improvements introduced in the leased premises and to pay for attorney's fees. In modifying the findings of the lower court, the appellate court declared that in view of the breaches of contract committed by the petitioner, the respondent is justified in forfeiting the security deposits. Moreover, since the petitioner did not obtain the consent of the respondent before she introduced improvements on the SM Megamall store space, the respondent has therefore no obligation to reimburse the petitioner for the amount expended in connection with the said improvements.24 The Court of Appeals, however, maintained the order of the trial court for respondent to return to petitioner her properties after she has settled her obligations to the respondent. The appellate court denied petitioner's Motion for Reconsideration in a Resolution25 dated 19 April 2006.
I. Whether or not the respondent is liable to return the security deposits to the petitions.
II. Whether or not the respondent is liable to reimburse the petitioner for the sum of the improvements she introduced in the leased premises.
Section 5. DEPOSIT. The LESSEE shall make a cash deposit in the sum of SIXTY THOUSAND PESOS (P60,000.00) equivalent to three (3) months rent as security for the full and faithful performance to each and every term, provision, covenant and condition of this lease and not as a pre-payment of rent. If at any time during the term of this lease the rent is increased[,] the LESSEE on demand shall make an additional deposit equal to the increase in rent. The LESSOR shall not be required to keep the deposit separate from its general funds and the deposit shall not be entitled to interest. The deposit shall remain intact during the entire term and shall not be applied as payment for any monetary obligations of the LESSEE under this contract. If the LESSEE shall faithfully perform every provision of this lease[,] the deposit shall be refunded to the LESSEE upon the expiration of this Lease and upon satisfaction of all monetary obligation to the LESSOR.
Since it was already established by the trial court that the petitioner was guilty of committing several breaches of contract, the Court of Appeals decreed that she cannot therefore rightfully demand the return of the security deposits for the same are deemed forfeited by reason of evident contractual violations.
It is undisputed that the above-quoted provision found in all Contracts of Lease is in the nature of a penal clause to ensure petitioner's faithful compliance with the terms and conditions of the said contracts.
In the instant case, the forfeiture of the entire amount of the security deposits in the sum of P192,000.00 was excessive and unconscionable considering that the gravity of the breaches committed by the petitioner is not of such degree that the respondent was unduly prejudiced thereby. It is but equitable therefore to reduce the penalty of the petitioner to 50% of the total amount of security deposits.
It is in the exercise of its sound discretion that this court tempered the penalty for the breaches committed by the petitioner to 50% of the amount of the security deposits. The forfeiture of the entire sum of P192,000.00 is clearly a usurious and iniquitous penalty for the transgressions committed by the petitioner. The respondent is therefore under the obligation to return the 50% of P192,000.00 to the petitioner.
Section 11. ALTERATIONS, ADDITIONS, IMPROVEMENTS, ETC. The LESSEE shall not make any alterations, additions, or improvements without the prior written consent of LESSOR; and all alterations, additions or improvements made on the leased premises, except movable or fixtures put in at LESSEE's expense and which are removable, without defacing the buildings or damaging its floorings, shall become LESSOR's property without compensation/reimbursement but the LESSOR reserves the right to require the removal of the said alterations, additions or improvements upon expiration of the lease.
The foregoing provision in the Contract of Lease mandates that before the petitioner can introduce any improvement on the leased premises, she should first obtain respondent's consent. In the case at bar, it was not shown that petitioner previously secured the consent of the respondent before she made the improvements on the leased space in SM Megamall. It was not even alleged by the petitioner that she obtained such consent or she at least attempted to secure the same. On the other hand, the petitioner asserted that respondent allegedly misrepresented to her that it would renew the terms of the contracts from time to time after their expirations, and that the petitioner was so induced thereby that she expended the sum of P200,000.00 for the improvement of the store space leased.
The Court ruled that the stipulation of the parties in their lease contract "to be renewable" at the option of both parties stresses that the faculty to renew was given not to the lessee alone nor to the lessor by himself but to the two simultaneously; hence, both must agree to renew if a new contract is to come about.
Moreover, it is consonant with human experience that lessees, before occupying the leased premises, especially store spaces located inside malls and big commercial establishments, would renovate the place and introduce improvements thereon according to the needs and nature of their business and in harmony with their trademark designs as part of their marketing ploy to attract customers. Certainly, no inducement or misrepresentation from the lessor is necessary for this purpose, for it is not only a matter of necessity that a lessee should re-design its place of business but a business strategy as well.
Art. 546. Necessary expenses shall be refunded to every possessor; but only possessor in good faith may retain the thing until he has been reimbursed therefor.
Being mere lessees, the private respondents knew that their occupation of the premises would continue only for the life of the lease. Plainly, they cannot be considered as possessors nor builders in good faith.
In a plethora of cases, this Court has held that Article 448 of the Civil Code, in relation to Article 546 of the same Code, which allows full reimbursement of useful improvements and retention of the premises until reimbursement is made, applies only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. It does not apply where one's only interest is that of a lessee under a rental contract; otherwise, it would always be in the power of the tenant to "improve" his landlord out of his property.
Since petitioner's interest in the store space is merely that of the lessee under the lease contract, she cannot therefore be considered a builder in good faith. Consequently, respondent may appropriate the improvements introduced on the leased premises without any obligation to reimburse the petitioner for the sum expended.
In the instant petition, it was not shown that the respondent unjustifiably refused to grant the demands of the petitioner so as to compel the latter to initiate legal action to enforce her right. As we have found herein, there is basis for respondent's refusal to return to petitioner the security deposits and to reimburse the costs of the improvements in the leased premises. The award of attorney's fees is therefore not proper in the instant case.
WHEREFORE, premises considered, the instant Petition is PARTLY GRANTED. The Court of Appeals Decision dated 10 October 2003 in CA-G.R. CV No. 73853 is hereby AFFIRMED with the MODIFICATION that the respondent may forfeit only 50% of the total amount of the security deposits in the sum of P192,000.00, and must return the remaining 50% to the petitioner. No costs.
1 Penned by Associate Justice Elvi John S. Asuncion with Associate Justices Godardo A. Jacinto and Lucas P. Bersamin, concurring. Rollo, pp. 8-17.
29 Filinvest Land, Inc. v. Court of Appeals, G.R. No. 138980, 20 September 2005, 470 SCRA 260, 269.
30 Ligutan v. Court of Appeals, 427 Phil. 42, 51 (2002).
31 Filinvest Land, Inc. v. Court of Appeals, supra note 29 at 269-270.
32 Supra note 30 at 52.
33 G.R. No. L-80231, 18 October 1988, 166 SCRA 577, 587-588.
34 Josefa v. San Buenaventura, G.R. No. 163429, 3 March 2006, 484 SCRA 49, 60.
35 Lopez v. Sarabia, G.R. No. 140357, 24 September 2004, 439 SCRA 35, 49.
36 328 Phil. 682, 689-690 (1996).
37 Philippine Air Lines, Inc. v. Court of Appeals, 193 Phil. 560, 580 (1981).


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COMMONWEALTH BANK AND TRUST COMPANY vs. ARTHUR PLOTKIN.
CONTRACT. Writ in the Municipal Court of the City of Boston dated June 18, 1973.
Following removal to the Superior Court, subsequent transfer to the Municipal Court of the City of Boston, and retransfer to the Superior Court, a motion for summary judgment was heard by Morse, J.
Shelley M. Draper for the defendant.
Joel Lewin for the plaintiff.
dishonored for insufficient funds. We hold that Plotkin is prima facie liable as indorser under Uniform Commercial Code (G. L. c. 106) Section 3-403 (2) (b), and that he has made an insufficient showing to prevent summary judgment against him under Mass. R. Civ. P. 56, 365 Mass. 824 (1974).
The action was brought in the Municipal Court of the City of Boston and was removed to the Superior Court. Then it was transferred to the Municipal Court of the City of Boston under G. L. c. 231, Section 102C, for trial. The corporation was added as a defendant and defaulted, and after hearing there was a finding against Plotkin in the amount of the check. On retransfer to the Superior Court summary judgment was entered for the bank against Plotkin, and Plotkin appealed to the Appeals Court. We transferred the case here on our own motion.
The following facts appear without dispute from the parties' affidavits and the exhibits. Plotkin was president and treasurer of the corporation, which had provided services to a business in which Sumner Boches and Frank J. Griesing had interests. In payment for those services Boches issued his personal check dated March 24, 1973, for $6,038 payable to the order of the corporation. That check was deposited in the corporation's account, but was returned for insufficient funds on April 2, 1973. Later Griesing issued the check sued on, dated April 13, 1973, in the same amount payable to the order of Arthur Plotkin. Plotkin deposited it in the same corporate account on April 17, 1973, but it was returned for insufficient funds on April 26, 1973. At Plotkin's request it was redeposited on April 30, but it was again dishonored and charged back to the corporation's account. The resulting overdraft exceeded the amount of the check.
the Griesing check had cleared and that the proceeds were available for use by Creative Travel, Inc. As a consequence checks were issued by the undersigned against that account." The bank had on many prior occasions credited the corporation's account "with checks issued in the name of the undersigned but intended for and deposited by the undersigned as an agent for and to the account of" the corporation. The bank "well knew" it was the corporation and not Plotkin which was entitled to the proceeds of the check. The bank obtained a personal note from Boches for the amount due and accepted payments thereon. The parties have stipulated for a reduction of the judgment appealed from by $100, reflecting the payments received from Boches.
The principal issue argued to us is whether the signature "Arthur Plotkin" on the back of the check was an individual indorsement or was made in a representative capacity. Plotkin claims that the case is within Section 3-403 (2) (b): "(2) An authorized representative who signs his own name to an instrument . . . (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, . . . ." He and the bank, as indorser and indorsee, are "immediate parties," he says. The burden is on him to disprove personal liability. Carleton Ford, Inc. v. Oste, 1 Mass. App. Ct. 819, 819-820 (1973). Cf. Universal Lightning Rod, Inc. v. Rischall Elec. Co., 24 Conn. Supp. 399, 401 (Cir. Ct. 1963). But, he argues, he is entitled to a trial of the issue under Mass. R. Civ. P. 56 (e), which requires that he "set forth specific facts showing that there is a genuine issue for trial." See Community Nat'l Bank v. Dawes, 369 Mass. 550 , 556 (1976).
to the person "the instrument" names. Decisions in other States, however, have applied the same rules to irregular or anomalous indorsements, out of the chain of title, placed on an instrument before issue. Weather-Rite, Inc. v. Southdale Pro-Bowl, Inc., 301 Minn. 346, 347 (1974). Central Trust Co. v. J. Gottermeier Dev. Co., 65 Misc. 2d 676, 677 (N.Y. Sup. Ct. 1971). Trenton Trust Co. v. Klausman, 222 Pa. Super. 400, 405 (1972). Perhaps those rules can be applied by analogy to regular indorsements by payees, since an indorsement resembles a new instrument written on the back of the original instrument. See Heylyn v. Adamson, 97 Eng. Rep. 503, 504 (K.B. 1758) (Lord Mansfield); Cormack & Browne, Indorsements After Maturity and the "New Bill" Doctrine, 30 Ill. L. Rev. 46, 48-57 (1935).
There are further complications. If the check at the time of deposit bore only one indorsement, that of the corporation, the indorsement of the payee was missing, and the check could have been returned by the drawee bank without dishonor. Sections 3-411 (3), 3-507 (3). The missing indorsement could not be supplied under Section 4-205 (1) unless Plotkin rather than the corporation was "the customer." "Unless otherwise agreed," however, Section 3-201 (3) would give the bank of deposit, once it gave value by permitting withdrawals, "the specifically enforceable right to have the unqualified indorsement" of Plotkin as "transferor." On the other hand, if Plotkin had first transferred the check to the corporation without indorsement, and the corporation then transferred it to the bank by indorsement, Plotkin was not one of "the immediate parties" to the indorsement transaction within Section 3-403 (2) (b).
affidavit does not disclose who acted for the bank in the deposit of the check, what disclosure was made of Plotkin's intention, what manifestation of intention was made on behalf of the bank, or what authority existed for such a manifestation. Cf. Henriques v. Franklin Motor Car Co., 260 Mass. 518, 519 (1927). Plotkin's statements of what the bank "well knew" fall well short of showing an agreement by the bank to accept for deposit without recourse a check with the payee's indorsement missing. Cf. Seale v. Nichols, 505 S.W.2d 251, 254-255 (Tex. 1974), where a similar affidavit was held insufficient to prevent summary judgment against a representative as maker of a note.
According to Plotkin's affidavit, he issued checks against the account of the corporation as a consequence of advice by the bank that the Griesing check had cleared. He argues that any loss to the bank was caused by the bank's negligence and that he is therefore not liable, citing Sections 3-502 and 3-601 (2). The affidavit makes no reference to deficiency in presentment or notice of dishonor. His reliance to his detriment on a misrepresentation by the bank might give rise to a defense in the nature of estoppel, but his affidavit makes no showing of any such detriment.

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G.R. No. 200029, November 13, 2013 - PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BASILIO VILLARMEA Y ECHAVEZ, Accused-Appellant.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BASILIO VILLARMEA Y ECHAVEZ, Accused-Appellant.
Before this Court is an appeal from the May 25, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00021 affirming the judgment2 of the Regional Trial Court (RTC) of Mandaue City, Branch 28, finding appellant Basilio Villarmea y Echavez (Villarmea) guilty beyond reasonable doubt for the murder of Arnaldo Diez (Diez). The victim was stabbed to death along a street in Mandaue City during a fistfight that involved several persons who allegedly assaulted and ganged up against the victim and his uncle, Jaime Candelada (Candelada).
That on or about the 13th day of March, 2000 in the City of Mandaue, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with deliberate intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously stab one Arnaldo Diez y Dadang with a bladed instrument, thereby inflicting upon the latter mortal wounds at his vital portion which caused his death soon thereafter.
Since the original Information4 only charged appellant, the Amended Information included the following other co-accused: Jonathan Labora, Ronnie Obatay, Florie Aplece and Marlon Canlom. Appellant and Canlom were detained and entered a plea of Not Guilty upon arraignment. The other co-accused remain at-large.
A few minutes after the incident[,] the accused was arrested at his place of work at J. King Construction. Accused however claimed that he did not flee.
Jaime Candelada, a prosecution witness, saw accused at the police station immediately after the incident.
WHEREFORE, this Judgment is hereby rendered finding the accused Basilio Villarmea y Echavez, guilty beyond reasonable doubt of the crime of Murder. Accordingly, the accused Basilio Villarmea is hereby sentenced to the penalty of imprisonment of Reclusion Perpetua together with the accessories imposed under the law. Accused is also hereby ordered to pay to the heirs of Arnaldo Diez, the amounts of: P50,000.00 as damages ex delicto; P25,000.00 as actual damages; P10,000.00 as moral damages and P10,000.00 as exemplary damages.
For lack of evidence, the accused Marlon Canlom is hereby acquitted. The Court hereby orders the immediate release of Marlon Canlom from detention unless he is being held for some other lawful cause.
After a careful review of the evidence on record, we affirm the ruling of the appellate court and sustain that the award of moral damages be increased to P50,000. We, however, modify the award of civil indemnity to be increased from P50,000 to P75,000, and the amount of exemplary damages to be increased from P25,000 to P30,000, to conform with prevailing jurisprudence.
Under Article 248 of the Revised Penal Code, murder is committed by any person who, not falling within the provisions of Article 246, shall kill another with any of the enumerated qualifying circumstances – including treachery and conspiracy. In a litany of cases, this Court has consistently explained that there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof, which tend directly and specially to ensure its execution without risk to himself arising from the defense that the offended party might make.29 In People v. Barde,30 we stated that the essence of treachery is that the attack is deliberate and without warning, done swiftly and unexpectedly, affording the hapless, unarmed and unsuspecting victim no chance to resist or escape.
We also sustain the finding that appellant conspired with his co-accused in killing the victim. They ganged up on the victim and took turns in stabbing and mauling him – animated by the same purpose and criminal intent to kill. Such unity of mind and purpose is shown by the twelve stab wounds and several abrasions found on different parts of the body of the victim that led to his instantaneous death. We agree with the trial court that while there may be no “evidence of an appreciable time that these persons agreed on the criminal resolution prior to the incident, x x x the stabbings were not separate but were geared towards the consummation of the same end – to attack and kill the victim.”33 Appellant’s positive identification by Candelada as one of those persons who stabbed the victim makes him criminally responsible as principal by indispensable cooperation. There is nothing in the evidence on record that can make this Court doubt the credibility of Candelada in his positive identification of appellant as the person who first boxed him, as the one who stabbed the victim, and as one of the persons who attacked him and the victim.
In sum, the Court finds no cogent reason to disturb the decision of the CA when it affirmed the factual findings of the trial court. We have consistently held that in criminal cases, the evaluation of the credibility of witnesses is addressed to the sound discretion of the trial judge whose conclusion thereon deserves much weight and respect because the judge had the direct opportunity to observe them on the stand and ascertain if they were telling the truth or not. This deference to the trial court’s appreciation of the facts and of the credibility of witnesses is consistent with the principle that when the testimony of a witness meets the test of credibility, that alone is sufficient to convict the accused. This is especially true when the factual findings of the trial court were affirmed by the appellate court.36 Thus, absent any showing that the trial court in this case had overlooked substantial facts and circumstances, which if considered would change the result of the case,37 this Court gives deference to the trial court’s appreciation of the facts and of the credibility of witnesses.
As to the award of damages, we make the following modifications to conform with prevailing jurisprudence. The award by the trial court of P50,000 as civil indemnity for the death of the victim is increased to P75,000 which is mandatory and is granted without need of evidence other than the commission of the crime which caused the victim’s death.38 We agree with the appellate court that the award of moral damages by the trial court should be increased from P10,000 to P50,000. This amount is awarded despite the absence of proof of mental and emotional suffering of the victim’s heirs as a violent death necessarily brings about emotional pain and anguish on the part of the victim’s family.39 As to the award of exemplary damages, we increase the award made by the appellate court from P25,000 to P30,000.40 The actual damages amounting to P25,000 as awarded by the trial court is sustained.
WHEREFORE, the Decision dated May 25, 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 00021 affirming the conviction of appellant Basilio Villarmea y Echavez is AFFIRMED with MODIFICATION. The award of civil indemnity is increased to P75,000 and the award of exemplary damages is increased to P30,000. Interest at the rate of six percent (6%) per annum on all the damages awarded in this case from the date of finality of this judgment until fully paid shall likewise be paid by appellant to the heirs of Arnaldo Diez.
With costs against the appellant.
1Rollo, pp. 6-13. Penned by Associate Justice Isaias P. Dicdican with Associate Justices Ramon M. Bato, Jr. and Apolinario D. Bruselas, Jr. concurring.
2 CA rollo, pp. 24-38. Penned by Judge Marilyn Lagura-Yap.
3 Id. at 9. Underscoring in the original.
6 Id.; TSN, May 15, 2001, pp. 5-8.
7 TSN, May 15, 2001, pp. 9-14, 18-19.
8 TSN, May 22, 2001, pp. 2-6.
10 TSN, May 30, 2001, pp. 2-5.
13 TSN, June 19, 2001, pp. 2-5, 9.
15 TSN, September 10, 2001, pp. 2-8.
17 TSN, October 22, 2001, pp. 2-11; TSN, November 5, 2001, p. 3.
18 TSN, January 23, 2002, pp. 2-8, 18-20.
19 TSN, March 15, 2002, pp. 2-6, 8.
20 TSN, June 17, 2002, pp. 2-3, 5.
21 CA rollo, p. 38.
26 Id. at 9, 13.
29People v. Tan, 373 Phil. 990, 1010 (1999); People v. Mallari, 369 Phil. 872, 885 (1999).
30 G.R. No. 183094, September 22, 2010, 631 SCRA 187, 215.
32 CA rollo, p. 32.
36People v. Obina, G.R. No. 186540, April 14, 2010, 618 SCRA 276, 281.
37Rollo, p. 12. Citation omitted.
38People v. Laurio, G.R. No. 182523, September 13, 2012, 680 SCRA 560, 572.
40 Id. at 572-573; People v. Gutierrez, G.R. No. 188602, February 4, 2010, 611 SCRA 633, 647.