Sep 242014

Reference ID Created Released Classification Origin
06MANILA4712 2006-11-16 02:28 2011-08-30 01:44 CONFIDENTIAL Embassy Manila
DE RUEHML #4712/01 3200228
O 160228Z NOV 06
C O N F I D E N T I A L SECTION 01 OF 04 MANILA 004712



E.O. 12958: DECL: 11/15/2016


Classified By: Ambassador Kristie A. Kenney for reasons 1.4
(b) and (d).

¶1. SUMMARY (C) A verdict is expected on November 27 in the
legal case in a Philippine court against four U.S. Marines
charged with raping a Filipino woman on the evening of
November 1, 2005 in Subic. This message re-caps evens that
occurred as well as efforts by the USG to assure a positive
atmosphere for the Marine case to be tried.

¶2. (SBU) Under the terms of the Visiting Forces Agreement,
the Marines have remained in USG custody during the
investigation and trial by Philippine authorities. Once
begun, the trial has moved briskly in order to comply with a
one-year period since assignments on December 27, provided
for in the Visiting Forces Agreement. Media coverage of the
case has been often highly emotional, but evenhanded by
Filipino standards. Embassy has countered efforts of groups
seeking to use this trial to harm Philippine-U.S. relations
by acknowledging the high emotions involved in the case,
underscoring that we want truth and justice to prevail
through rule of law, and stressing the merits of the VFA.
Our ongoing ship visits and military exercises, with their
robust components of community relations projects, have
contributed to even more favorable views of the
U.S./Philippine mil-mil relationship than one year ago. END

The Alleged Rape

¶3. (U) On the evening of November 1, 2005 LCpls Daniel
Smith, Keith Silkwood, and Dominic Duplantis went to the
Neptune Club in Subic Bay at approximately 9:30 p.m. to meet
up with other Marines. LCpl Smith met the complainant, who
had arrived in Subic two days previously, and they conversed
and danced. The Marines’ superior officer, SSgt Chad
Carpentier, appeared at the Neptune Club at approximately
11:30 p.m. to remind the Marines of their midnight curfew and
to drive them back to the USS Essex, about five minutes away
by van.

¶4. (U) According to the testimony of LCpl Smith, he invited
the complainant to ride with them after she asked him to stay
at the club a little longer. She accepted, exited the bar
with the Marines, climbed into the van, and headed to the
rear seat. Smith testified that the two of them engaged in
consensual sexual intercourse, with Smith wearing a condom.

¶5. (U) LCpl Smith further testified that when the van
arrived at the pier, someone shouted, “Hurry, you and the
bitch get out!” They all exited the van except SSgt
Carpentier, who directed the van driver to take him to
another bar. Smith testified that he tried but failed to
find a taxi for the complainant, who was upset about the
name-calling and struggling to get dressed. The midnight
curfew was approaching and time was tight. Smith testified
that it was a well lit area with lots of people around so he
felt comfortable leaving her after she said she would be fine
getting home. Smith testified that he told her they could
meet at the Neptune Club again the next night. Smith
testified that he then hurried back to the Essex with
Silkwood and Duplantis, arriving shortly after 12 a.m.

¶6. (U) In contrast, the complainant testified that LCpl
Smith brought her out of the bar and into the back seat of
the van. She testified that she had been drinking heavily
and was in and out of consciousness. At one point, she says
she woke up in the back seat with Smith on top of her. She
testified that when the van arrived at the pier she was
lifted out of the van with her pants on backwards and around
her ankles.

¶7. (U) A Naval Criminal Investigation Service (NCIS) agent,
who was present in Subic for the visit of the USS Essex and
other U.S. Navy vessels participating in a military exercise,
learned about allegations of rape on November 2. In the
early morning hours of November 3, SSgt Carpentier, LCpls
Smith, Silkwood, and Duplantis were awakened on the USS
Essex, and escorted to the Subic Bay Metropolitan Authority
(SBMA), where NCIS and SBMA authorities questioned them.
When it became clear that the Philippine authorities intended
to press charges, a representative of the Joint United States
Military Assistance Group (JUSMAG) asserted the U.S.
Government’s right to custody of the accused, and arranged
for transportation of the Marines to a safe house in Manila

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on the morning of November 3. The Embassy later transferred
them to safe quarters on the Embassy grounds. On December
27, Philippine prosecutors filed charges of rape against SSgt
Carpentier, and LCpls Smith, Silkwood, and Duplantis.

The Trial Schedule

¶8. (U) On June 2, the trial of the four Marines began in
Makati City, Manila, after a change of venue from Olongapo
City at the request of the local judge. Much of the case for
the prosecution was built around the testimony of the NCIS
agents and NCIS Locally Employed Staff, who had conducted
interviews of the Marines involved, and many other witnesses,
and who had shared the NCIS reports with the local
prosecutor. Much testimony by the prosecution focused on
the witnesses’ recollection of events documented in NCIS’
written reports. The prosecution conceded on June 22 that
physical evidence, including the complainant’s clothing and a
condom found at the scene, was mishandled by the SBMA’s
Intelligence and Investigation Office.

¶9. (U) The complainant testified beginning on July 6.
Prosecutors argued that the complainant drank heavily before
the alleged incident, and that she intermittently experienced
memory black-outs before, during, and after the incident
allegedly took place. In further testimony, she recounted
the destitution she and her family have endured since the

¶10. (U) The prosecution’s chief medical witness testified
that the complainant’s injuries were consistent with sexual
assault and offered possible causes for why no trace of semen
was found anywhere. The defense established that the medical
witness never personally examined the complainant or the
evidence, but based her testimony on an interview of the
complainant before the trial began. A toxicologist
testifying for the prosecution alleged that the complainant
was intoxicated to such a degree that she would not have been
able to consent to sexual activity.

¶11. (U) The defense attorneys commenced their case on
September 11, with testimony from LCpl Smith and another
Marine and friend of the complainant, LCpl Justin Bamberger.
SSgt Carpentier followed and testified that his first
impression of the complainant was that she was a
“professional preying on the vulnerability of Smith,” and
that she seemed in full control of herself. LCpl Silkwood’s
and LCpl Duplantis’ testimonies corroborated LCpl Smith’s and
SSgt Carpentier’s stories. Defense forensic obstetrical and
gynecologist experts testified that the injuries sustained by
the complainant did not suggest rape. The defense rested
after calling six witnesses.

¶12. (U) The testimony of the Marines coincided with a
breakdown in the relations between the members of the
prosecution team (a mix of government and private lawyers)
and the complainant. According to the complainant and her
private attorney, the prosecution team tried to bully her and
her family into accepting a settlement on the case. Senior
State Prosecutor Emelie delos Santos denied such a
conversation took place and labeled the complainant and her
family “liars” and “ingrates.” Justice Minister Raul
Gonzalez publicly mused that the complainant might have
dreamed up the settlement offer as well as the whole rape

¶13. (U) On October 5, Judge Pozon gave the prosecution and
defense 30 days to file Memoranda of Evidence, and announced
that he planned to render his verdict on November 27.

Post Verdict Plans

¶14. (C) With a verdict still expected on November 27, the
Embassy’s Working Group, with input from representatives of
the III Marine Expeditionary Force (MEF) in Okinawa, has
tentative post-verdict plans that take into account security,
public affairs, transportation, financial, and immigration
concerns. Immediately following the judge’s verdict, any
Marines acquitted will be transported via a U.S. military
aircraft directly to Okinawa. Any Marines found guilty will
remain in Embassy custody, pending decisions on incarceration
or appeals issues. In the event that the verdict involves
any civil (monetary) damages against them, the four Marines
have arranged to pre-pay each of their attorneys $2,000,
which would be used by the attorneys themselves to pay

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directly to the court, if needed.

Support for the Marines

¶15. (U) The Embassy continues to provide security, American
Citizen Services (ACS), public affairs, and other support to
the defendants. Representatives of the III MEF, including a
member of the Judge Advocate’s Office, have been present to
supervise the accused at all times as well as to coordinate
with the local defense attorneys and to observe the trial.
ACS representatives have also attended all trial sessions.
RSO has provided security for the appearances by the accused
at the court, and has been consistently pleased with the
extent and quality of security support provided by the
mayor’s office and police department in and around the Makati
Court House. They expect the same level of cooperation on
the day of the verdict. Our Public Affairs Section has
directed public attention toward the judicial process, and
away from broader issues of U.S.-Philippine relations.
Embassy continues to provide access to some fitness and
sports facilities on the Chancery grounds for the four

Test case for VFA

¶16. (C) This case was the first time the VFA, signed in
1998 and ratified by the Philippine Senate in 1999, had been
put to use in a criminal case. A key measure in the VFA
allows the USG to maintain custody of the four Marines. The
GRP respected the terms of the VFA. However, we expect that
the custody issue will again be raised by GRP officials,
perhaps for domestic political reasons, if any of the Marines
are found guilty. Embassy is firm in its interpretation of
the VFA that allows us to continue to maintain custody
through any appeals process. With the consent of the accused
and their local attorneys, the Embassy facilitated one
request each from the Visiting Forces Agreement Commission
and from the Congressional VFA Oversight Committee to meet
with the accused before their public appearances in court.

Extensive Media Coverage

¶17. (U) Media coverage of this case has been, by drama-laden
Filipino standards, more or less evenhanded. Sensational
media coverage spiked at the time of the initial accusations,
at the outset of the trial and as the principal players – the
complainant and the Marines – testified. The local media has
also made much of the public disputes between the complainant
and the prosecution team. Two of the Marines, SSgt
Carpentier and LCpl Smith, have given several television
and/or print interviews with the advice and consent of their
legal counsel and within guidelines established by III MEF
and the Embassy. LCpls Silkwood and Duplantis have not given
interviews. While detained U.S. enlisted personnel would not
normally give press interviews, Embassy facilitated those
requested by SSgt Carpentier and LCpl Smith because of the
view of those two Marines and their attorneys that this would
contribute positively to their case.

Overcoming Negative Publicity

¶18. (U) Political activists surrounding the complainant and
her principal private legal counsel have sought to raise
anti-American public sentiment about this case, apparently
with the objective of putting public opinion pressure on the
court, and on the Philippine government and Congress to
abrogate the VFA and damage Philippine-U.S. relations.

¶19. (SBU) Our continuing and extensive program of ship
visits and military exercises, all of which include a healthy
component of community relations and/or civil/humanitarian
programs, have provided a welcome antidote to the publicity
over this case and have reinforced the point that our mil-mil
relationship, as part of the broader U.S.-Philippine
friendship, is mutually beneficial. A recent survey
indicated that public attitudes toward U.S. ship visits and
exercises have actually grown more favorable over the past
year. The one year anniversary of the outset of this case
coincided with the return of the USS Essex to Subic for the
Talon Vision/Phiblex exercise, without engendering negative
publicity or more than a token protest by a small group of

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¶20. (U) The Embassy has also consistently sought to lessen
the potential pressure of nationalist public opinion on the
court and the Philippine government by publicly emphasizing
several points throughout this process:

– that the case is highly emotional and difficult for all the
individuals involved, as well as for their families and

– that the USG has no prejudgment about the guilt or
innocence of any of those involved, and wants the truth to be
known and justice served;

– that under both Filipino and U.S. law, all accused are
considered innocent until proven guilty; and,

– that the trial itself is consistent with the terms of the

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