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Attorneys for Lance Cpl. Daniel Smith, with support from the Philippine government, will appeal a judge’s ruling Wednesday to keep the U.S. Marine in a Philippine jail while his rape conviction appeal is heard.

In denying the U.S. request for custody of Smith, Judge Benjamin Pozon of the Makati city regional trial court shot down his government’s argument that a 1998 bilateral military agreement grants the United States custody of Smith until the judicial process is over.

The Visiting Forces Agreement reads in part: “The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

But, according to The Associated Press, Pozon said the provision refers to “the judicial proceedings in the trial court” and no longer applies once a conviction has been issued, regardless of a pending appeal.

Jose Justiniano, Smith’s attorney, said Pozon’s interpretation “is incorrect. He believes that appeal is not part of a judicial proceeding, which is obviously wrong.”

Evalyn Ursua, the victim’s lawyer, lauded Pozon for “his courage and independence. We can just imagine the pressure coming from those in power for him to rule in favor of Smith and the U.S. government and for him to stick to his position is really admirable.”

A request to interview the judge by phone Wednesday was denied. A court official said the judge is not granting media interviews.

Justiniano said his legal team plans to appeal the ruling to the Philippine appellate court on grounds that there was no legal or factual basis for the judge’s order.

“We are seeking a temporary restraining order to maintain the status quo so that Smith can be returned to the U.S. Embassy pending a final decision,” Justiniano said.

Smith was to remain at the Makati city jail in Manila’s financial district. Pozon ordered him there Dec. 4, following the Marine’s conviction and 40-year sentence for raping a 23-year-old Philippine woman last year.

Marines Staff Sgt. Chad Carpentier, Lance Cpl. Keith Silkwood and Lance Cpl. Dominic Duplantis were acquitted of conspiring to rape the victim by cheering on Smith. They returned last week to the 31st Marine Expeditionary Unit — part of the III Marine Expeditionary Force — on Okinawa.

III MEF spokesman Lt. Garron Garn said in a written response Wednesday that Silkwood and Duplantis received unspecified administrative punishment after it was determined they had not violated the Uniform Code of Military Justice. The investigation into Carpentier’s actions is “ongoing,” Garn said.

Back in Manila, Smith has received many letters of support from Filipinos, Justiniano said.

U.S. Embassy spokesman Matt Lussenhop said from Manila on Wednesday that embassy officials will continue to work with Smith’s lawyer and the Philippine government “to bring everything into compliance with the obligations under the VFA.”

A statement posted on the embassy’s Web site Wednesday said the Makati court’s decision “reflects a misunderstanding of the nature of Philippine obligations under the terms” of the VFA during judicial proceedings.

“Continued U.S.-Philippines military cooperation relies upon adherence to the VFA, which provides a clear framework for the legal status of visiting U.S. service members,” the statement said.

Lussenhop said Smith is detained in an office at the Makati jail and has embassy and III MEF officials with him at all times. The embassy also is providing him food, he said. In most Philippine jails, he said, family members or supporters provide food.

“The embassy will continue to provide him with food,” he said.

If the court of appeals denies Smith’s petition, Justiniano said he’s prepared to appeal next to the Philippine Supreme Court.

Jovencito Zuno, chief state prosecutor for the Philippine Department of Justice, said the Supreme Court would have the final say on custody of Smith during his appeal. But, he added, it could take up to six months for the appeal to be heard by the country’s highest court.

The Justice Department will continue to support the U.S. custody request, Zuno said. The Philippine Department of Foreign Affairs planned to file a joint appeal with Smith’s defense attorneys, Zuno said. The Justice Department would sign the petition in a show of support if asked, he said.

The Visiting Forces Agreement is a treaty, he said, “and part of the law of the land.”

A decision from the court of appeals could be issued this week, Zuno said.

“We’re asking the court to expedite (it),” he said.

Stars and Stripes reporter David Allen and The Associated Press contributed to this story.

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