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The attorneys for Lance Cpl. Daniel Smith, convicted Monday of rape in the Philippines, say they are appealing the Marine’s guilty verdict and 40-year prison term on grounds there was not evidence beyond a reasonable doubt.

“We filed notice of appeal this afternoon,” said Benjamin Formoso on Monday. Formoso serves as Smith’s co-counsel along with lawyer Ricardo Diaz.

“We didn’t expect this decision, since the evidence against our client is very weak,” he said.

In a decision televised across the Philippines on Monday afternoon, Judge Benjamin Pozon of the Makati City regional trial court convicted Smith of raping a 23-year-old Filipina, known as “Nicole,” on Nov. 1, 2005, while she was drunk at the former U.S. naval base in Subic Bay.

“He was the one who was on top of the complainant, who resisted his kisses, pushed him and fought back until she lost consciousness because of alcoholic drinks she had taken,” said part of a 60-page court decision, read by a court employee.

Pozon said the severe penalty was aimed “to protect women against the unbridled bestiality of persons who cannot control their libidinous proclivity.”

Also Monday, Pozon acquitted three fellow Okinawa Marines — Staff Sgt. Chad Carpentier, Lance Cpl. Keith Silkwood and Lance Cpl. Dominic Duplantis — of complicity. They also faced 40 years in prison if convicted.

Smith, 21, of St. Louis and assigned to the Okinawa-based 31st Marine Expeditionary Unit, claimed the sex was consensual. He’s the first American servicemember to be convicted of wrongdoing since the Philippine Senate ordered U.S. bases closed in the early 1990s and joint training was established in 1998 under the Visiting Forces Agreement.

Immediately following the court hearing, Smith was transferred to Philippine authority and escorted to the Makati police station in suburban Manila, where he was to be held temporarily, Formoso said.

Smith also was ordered to pay the woman 100,000 pesos ($2,000) in compensatory and moral damages.

A U.S. Embassy spokesman in Manila said Monday the three acquitted Marines were “returning to their units today.”

A statement on the Embassy’s Web site noted that the Marines’ commander “will now take action regarding the completion of the U.S. military’s own investigation of this case. This has been a difficult and emotional matter for all involved, and for their families and friends.”

Despite the acquittal of three of the Marines, senior state prosecutor Emilie Fe Delos Santos, the lead criminal prosecutor in the case for the Philippine Justice Department, said her team was pleased with the verdict.

“The judge is fair,” she said by phone from Makati on Monday afternoon. “We got Smith.”

Delos Santos said the conspiracy case against the three Marines was weak, “but we had a very strong case against Smith. The prosecution was able to show that she was really intoxicated at the time of commission of the felony.”

The judge, in his decision, pointed to 13 pieces of circumstantial evidence that convinced him of Smith’s guilt, Delos Santos said.

Nicole had testified that she was drunk and too weak to stop the rape inside a moving van the Marines had rented while on shore leave after finishing a counterterrorism exercise in the northern Philippines. She claimed the other Marines inside the van laughed and listened to loud music.

Prosecution witnesses also testified that Nicole was drunk and was carried on Smith’s back into the van, then lifted out of the vehicle “like a pig” and left on the sidewalk with her pants down.

“The judge believed that the witnesses had no reason to lie, no motive or ill intent,” Delos Santos said.

But Formoso said there was no hard evidence to convict his client “beyond a reasonable doubt.”

When asked how Smith was holding up, Formoso said, “He feels bad now. By the same token, there really was no rape. This girl wanted to get acquainted with the Americans.”

The seven-month trial gained worldwide media attention and fueled protests in the Philippines over the presence of the U.S. military, which has worked with Philippine troops to thwart Muslim militancy in the south.

About 100 protesters had gathered outside the courthouse, demanding the government scrap the 1998 Visiting Forces Agreement that allows U.S troops to train with Philippine troops after the Philippine Senate ordered U.S. bases shut down in the early 1990s.

A scuffle briefly broke out between U.S. Embassy security personnel and local police over who would take custody of Smith after his conviction as his three fellow Marines walked free. All four men have been in U.S. Embassy custody, in line with the VFA, but Philippine police took Smith away in handcuffs to be fingerprinted, photographed and given a medical check.

A Philippine police official said it appeared there had been a misunderstanding over whether Smith would remain in U.S. custody during an appeal. The judge ruled that he would be temporarily jailed in Makati, Manila’s financial district.

The VFA provides a legal framework for the U.S. military to conduct exercises. It determines who has legal jurisdiction over troops and spells out their rights and obligations when they are deployed to the Philippines.

Critics have charged the VFA grants U.S. servicemembers too much protection, as the Marines remained in U.S. custody during the trial.

Formoso said Philippine jails are congested and “so unjust.”

The Embassy on its Web site describes conditions as “inadequate facilities, poor food, and deficient sanitation.” It also notes that the Embassy monitors conditions in foreign prisons and immediately protests abuse allegations against American prisoners.

Delos Santos said Smith’s guilty verdict sends a triumphant message to the world: “We have our dignity, that our judicial system works … we are ready to prosecute and get a conviction for anybody who tries to trample on our rights as a sovereign country.”

Philippine government officials said Monday they don’t expect the case outcome to impact Philippine-U.S. ties.

“We laud the triumph of impartial justice,” said Ignacio Bunye, spokesman for President Gloria Macapagal Arroyo. “The court maintained an even keel despite the tremendous pressures upon the bench. We have shown the world that due process is a hallmark of Philippine democracy.”

The Associated Press contributed to this report.


Nov. 1, 2005 A 22-year-old Philippine woman files complaint alleging she was raped by a U.S. Marine at Subic Bay, a former U.S. naval base, while three other Marines allegedly cheered him on.

Nov. 3 Philippine authorities delay departure of the USS Essex while searching for the men. The ship leaves without the Marines, who are placed in U.S. Embassy custody.

Nov. 4 President Gloria Macapagal Arroyo instructs officials “to ensure that justice is done.”

Dec. 27 Prosecutors charge the Marines.

Jan. 12, 2006 A Philippine judge issues arrest warrant for the Marines.

Jan. 17 The U.S. formally rejects a Philippine request to hand over the Marines, citing provisions of a military pact.

Jan. 19 A Philippine congressional committee approves a nonbinding resolution urging the government to abrogate the pact.

April 28 The Marines refuse to answer rape charges against them, judge enters a not guilty plea.

June 2 A security guard at the Neptune bar testifies he saw Lance Cpl. Daniel Smith carry a drunk woman on his back to a van.

June 7 Prosecutors accuse the U.S. Embassy of delaying the proceedings by refusing to allow U.S. Navy investigators to testify. The embassy relents and allows investigators to appear.

June 29 A Philippine doctor tells court the accuser suffered injuries consistent with sexual assault.

July 6 “Nicole” breaks down on the stand as she identifies Smith as her rapist. She says she was too drunk to stop the assault.

July 10 “Nicole” attacks Smith with fists in court while walking to the stand.

July 17 Smith testifies he had consensual sex, says: “I think it’s horrible what I’ve been accused of. This place has taken a year off of my life that I can never get back.”

Sept. 20 Justice secretary rules out an out-of-court settlement as squabbles break out between “Nicole” and prosecutors, one of whom calls the accuser and her mother “liars” and “ingrates” at a news conference.

Dec. 4 Smith is convicted of rape, sentenced to 40 years. The three other Marines are acquitted.

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