Sep 282014
Reference ID Created Released Classification Origin
2009-03-18 10:02
2011-08-30 01:44
Embassy Manila

DE RUEHML #0610/01 0771002
O 181002Z MAR 09
C O N F I D E N T I A L SECTION 01 OF 04 MANILA 000610


E.O. 12958: DECL: 03/18/2019


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

¶1. (C) SUMMARY. The Philippine woman who accused U.S. Marine
LCpl Daniel J. Smith of rape in November 2005 has settled the
civil judgment against Smith and filed a sworn statement
March 17 with the Court of Appeals raising serious questions
about the events on the night of the alleged rape. The news
that Suzette Nicolas, or “Nicole” as she has been known in
the press until now, had filed the statement comes on the
heels of earlier reports that she had fired her long-time
attorney, and had left the Philippines. The story has
garnered front page news and speculation is rampant about
what might have influenced Smith’s accuser to abandon her
aggressive efforts to prosecute Smith. While Philippine
government officials have reacted positively, opposition
politicians are denouncing the Arroyo government, the U.S.,
and the Visiting Forces Agreement, which provides the legal
framework for U.S. military personnel in the Philippines.
Though it is yet early to assess the impact of Nicole’s sworn
statement, it could prove to be useful in achieving a
favorable Court of Appeals ruling or, ultimately, a
Philippine government decision to remove LCpl Smith from the
Philippines. Embassy press guidance is contained in para.


¶2. (C) U.S. Marine Lance Corporal Daniel J. Smith was
convicted by a Philippine trial court in December 2006 of
raping a Filipino woman at Subic Bay in November 2005 and was
sentenced to a maximum of 40 years in prison. Smith
immediately filed an appeal of the conviction and his case is
pending before the Court of Appeals. Except for a brief
three-week period following his conviction, during which
Smith was held in a Philippine jail, Smith has been in U.S.
custody on Chancery grounds since his arrest in November


¶3. (C) The case against LCpl Smith took an unusual turn March
17 when “Nicole” fired her long-time attorney, a prominent
left-wing activist, and settled with Smith the P100,000 (USD
2,000) civil judgment that a trial court ordered Smith to pay
in damages upon his conviction in December 2006. As part of
the settlement agreement, which is now a public document,
Nicole states she has “released, remised and forever
discharged Smith . . . from any and all claims, demands or
causes of action arising from the indemnity and compensatory
damages awarded” by the trial court. The settlement, signed
March 12 but filed with the Court of Appeals March 17,
further states that the payment was “strictly voluntary on
the part of Daniel J. Smith and shall not in any way be
construed as admission of liability, of whatever nature,” on
the part of Smith. Given that Nicole’s sole interest in the
case pending in the Court of Appeals was premised on the
civil judgment, her settlement with Smith effectively removes
her as a party to the litigation.


¶4. (C) In connection with the release of civil liability,
Nicole filed with the Court of Appeals a notarized sworn
statement seeking to “clarify certain aspects of (her)
testimony” given during the trial. Despite the media’s
characterization of the statement as a “recantation,” the
statement can be better characterized as a set of questions
from Nicole to the Court of Appeals that raise serious doubts
about what actually took place the night of the alleged
crime. In the statement, Nicole recalls how she “practically
grew up interacting with American servicemen” who treated her
and her family very well, and states that she “can’t help but
entertain doubts on whether the sequence of events in Subic
last November of 2005 really occurred the way the court found
them to have happened.” She concludes that she would rather
“risk public outrage than do nothing to help the court in
ensuring that justice is served.”

¶5. (C) Meanwhile, Nicole’s former attorney told the press
that, in terminating her services, Nicole’s mother said

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Nicole had left the country for the United States. For her
part, Nicole’s mother told reporters that Nicole had decided
to leave her painful past behind and start afresh. “She
decided that it’s time to move on,” Nicole’s mother told the
press, adding that it had been a “difficult” three years and
the family was “exhausted.” “We are no longer interested” in
the case, and “we leave Smith to God.” Nicole’s mother also
stated that Nicole looked “happy” as she left for “another
country.” The Public Affairs Section has fielded numerous
queries on the issue and, as is standard procedure with visa
questions on a particular case, has refused to comment for
privacy reasons.


¶6. (SBU) For its part, Malacanang quickly urged the public to
respect Nicole’s personal decision no longer to pursue the
case. Palace officials stressed that the Court of Appeals
will nonetheless continue to review the criminal case and may
or may not consider Nicole’s sworn statement. Asked by
media about the next possible step the defense can take,
Justice Secretary Raul Gonzalez said they can “ask the Court
of Appeals to declare a mistrial and the fiscal can move for
a dismissal of the case on the ground that evidence is not
strong.” An official of the Department of Foreign Affairs
who requested anonymity also said it is possible that the
case “could be dismissed due to lack of witnesses.”


¶7. (SBU) Predictably, opposition lawmakers generally saw
Nicole’s decision to settle her case as a setback for the
movement against the Visiting Forces Agreement. Opposition
Senator Francis Pangilinan, for example, said the news was
“terribly disheartening,” and was quick to blame the
government and the justice system for its failure to protect
ordinary citizens like Nicole. Party-list Representatives
Risa Hontiveros-Baraquel and Liza Masa speculated that the
U.S. had exerted pressure on the government and her family
and offered a deal that was too good to refuse. Senate
minority leader Aquilino Pimentel was apprehensive that
current calls in the Senate to abrogate the U.S.-RP Visiting
Forces Agreement would lose public appeal without the case.
These views were shared by leftist organizations BAYAN
(Bagong Alyansang Makabayan or New Patriotic Alliance) and
the National Union of People’s Lawyers, vocal critics of the
Visiting Forces Agreement.

¶8. (SBU) However, there were some moderate editorials that
recognized Nicole’s prerogative to settle her case, after
coping with three difficult years under intense media
scrutiny. They were sympathetic to Nicole’s family plea for
understanding and desire to live their lives in peace. Other
observers saw Nicole’s sworn statement as a recantation and
wondered whether Smith’s continued detention is tenable.


¶9. (C) Given the intense press and public attention the Smith
case has engendered, Mission requested that the Philippine
National Police increase its presence around the Embassy in
case of demonstrations. Post is prepared for possible
demonstrations at or near the U.S. Embassy with related media


¶10. (C) Nicole’s actions in definitively cutting her ties to
the case and settling the civil damages with LCpl Smith,
along with her sworn statement raising serious doubts about
the events that took place the night of the alleged rape,
give the Philippine government important tools it can use to
push the Court of Appeals to come to a rapid resolution on
the Smith case. In the event the Court of Appeals issues an
adverse decision, Nicole’s sworn statement could ultimately
prove useful in achieving a Philippine government decision to
remove LCpl Smith from the Philippines. We will continue
working vigorously at the highest levels to ensure that
senior Philippine government officials understand the import
of Nicole’s actions and move swiftly to resolve one of the
thorniest issues in our bilateral relationship. Post will

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follow up in coming days with recommendations on how a
broader USG effort can contribute to this goal.


¶11. (SBU) In response to numerous media queries, the Embassy
has prepared the following guidance:

U.S. Embassy Manila, March 18, 2009

Latest Developments on LCpl Smith Case

Q: Is it true the “Nicole” is in the United States?

— We have seen the media reports, but have no further
information on her whereabouts.

Q: Did the U.S. cut a deal with her and send her to the
U.S./give her a U.S. visa?

— I would refer you to the legal authorities for status of
the case.

— U.S. visas are adjudicated in strict accordance with U.S.
laws and regulations.

Q: But, didn’t the U.S. facilitate her travel to the U.S.?

— Thousands of people seek consular services each day at the
U.S. Embassy in Manila. For privacy reasons, we do not
comment on who seeks services or what services they sought.

Q: How will “Nicole’s” recanting affect the pending
negotiations between the U.S. and Philippine governments re
LCpl Smith’s custody?

— I would refer you to the legal authorities for questions
regarding the status of the case.

Q: What is the status of his custody?

— LCpl Smith remains in confinement at the main U.S. Embassy
compound in accordance with the VFA.

Q: What is the status of LCpl Smith’s appeal of his guilty

— I would refer you to his lawyers for information on the
legal proceedings of his case.

Q: The recent Philippine Supreme Court decision called the
confinement of LCpl Smith on the grounds of the U.S. Embassy
“unconstitutional.” The decision called for the U.S. and
Philippine governments to negotiate a new place of
confinement. What is the status of this negotiation?

— The U.S. Embassy has taken note of the Supreme Court
decision regarding the Visiting Forces Agreement (VFA). As
it concerns important legal issues, we have referred it to
United States Government legal experts in Washington.

— Although the Supreme Court decision is under
reconsideration and therefore not yet final, U.S. officials
have begun a dialogue on this issue with officials from the
Philippine Embassy in Washington.

— We have no further updates at this time.

Q: What is the status of the VFA?

— The VFA provides the sole legal framework for U.S.
Philippine cooperation on legal issues involving U.S.
military personnel in the Philippines. As such, it is
important for out bilateral military relationship.

Background: The plaintiff, known as “Nicole” and identified
as Suzette Nicolas in court documents, terminated the
services of her lawyer, Evelyn Ursua, in the Philippines on
March 16, 2009, in relation to the case involving her alleged
rape by U.S. Marine LCpl Daniel Smith. She settled with
Smith the P100,000 civil judgment that a trial court ordered
Smith to pay in damages and on March 17 filed a sworn
affidavit with the Court of Appeals raising questions about
the events on the night of the alleged rape in November 2005.
Media reports quote her former lawyer as saying that Nicole
has left the country. Smith’s appeal of his conviction has

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been pending in the Court of Appeals since October 2007.



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