Jailed Lacson aide saved by dictionary in US trial

CHICAGO, Illinois – Because the spying charges against former Filipino police officer Michael Ray B. Aquino was the first of its kind, the Court of Appeals for the Third Circuit in Philadelphia turned to the dictionary instead of jurisprudence for help to resolve the case. Government prosecutors contended that Aquino "obtained" US "national defense" documents from Filipino-American Leandro Aragoncillo, which would have justified US District Judge William H. Walls of New Jersey in imposing an elevated 76 months of sentence last 2007. But Circuit Judge Maryanne Trump Barry of the Court of Appeals, who penned the decision on behalf of the three-judge panel, pointed out in a decision handed down Friday (Feb. 6) that Aquino merely "knowingly and willfully retain[ed] and fail[ed] to deliver such documents." Judge Barry then turned to the 1993 version of the Webster’s Third New International Dictionary to define the word "obtain." "According to Webster’s, ‘to obtain" means ‘to gain or attain possession or disposal of usu[ally] by some planned action or method’ that has an ‘active connotation,’" Barry said. The Circuit judge added that under this definition, the act is punishable by an entirely distinct subsection of the law. The 13-page decision said that at the hearing of Aquino, “[the accused] answered in the affirmative when asked whether he had ‘receiv[ed]’ documents that Aragoncillo ‘was providing’ or ‘transmitting.’" "At no point was ‘planned action or method’ on Aquino’s part even suggested. While Aragoncillo was an active participant in the offense, Aquino’s role was purely passive," Judge Barry said. Judge Walls sentenced Aquino to 76 months in prison for violation of 18 United States Code 793(e), punishable under the harsher United States Sentencing Guidelines, 2M3.2, (Gathering National Defense Information, which imposes 35 years sentence if top secret and 30 years, if not) instead of the more lenient 2M3.3 (Transmitting National Defense Information, etc.). Aquino pleaded guilty to unauthorized possession and willful retention of two classified documents relating to national defense. The Court ruled that because “there is no sound textual basis for selecting either § 2M3.2 or § 2M3.3 to address Aquino’s retention," Aquino cannot be penalized under § 2M3.2 because his “offense is unambiguously excluded from it" under the doctrine of “unius est exclusio alterius" (The expressed mention of one thing excludes all others). “Under the plain language of the cross-reference, Aquino’s conviction can only be addressed under § 2M3.3. Accordingly, we will vacate the judgment of sentence and remand for resentencing," the ruling concluded. Reached for comment, Aquino’s lawyer, Mark A. Berman said, “We won the appeal. Michael will be resentenced. His new sentencing range will be 36-46 months (that is, essentially time served)." Aquino has now served exactly 41 months in prison to the day on Feb. 9, 2009. As soon as he is released from McRae Correctional Institution in Georgia, the 42-year-old Aquino will be processed for deportation. Meanwhile, his 50-year-old co-accused Leandro Aragoncillo, who did not appeal his 10-year imprisonment, will be released from Federal Correction Institute in Big Spring, Texas on May 28, 2014. Attorney Berman refused to make further comment if Aquino will still be extradited for the double murder of Filipino publicist Salvador “Bubby" Dacer and Dacer’s driver, Emmanuel Corbito. Aquino’s co-accused, Glenn Galapon Dumlao, in the double murder, has until Feb. 10, 2009 to appeal his extradition in New York while his other co-accused, Cezar Ochoco Mancao, is still facing extradition in Florida. Aquino, Mancao and Sumlao were officials of then Presidential Anti-Organized Crime Task Force (PAOCTF) that Senator Panfilo Lacson headed when he was still chief of the Philippine National Police. - GMANews.TV