As highlighted in this prior post, in September 2019 the DOJ announced the unsealing of a criminal indictment against (among others) Paulo Casqueiro Murta in connection with an alleged bribery scheme involving Venezuela’s state-owned and state-controlled energy company, PDVSA. According to the DOJ, Murta (a citizen of Portugal and Switzerland) provided financial services to various co-defendants (including former employees of PDVSA) in connection with various bribery schemes and he was charged with directly violating or assisting others in violating the FCPA and money laundering laws.
This post discussed the many judicial decisions in the matter – mostly on non-FCPA procedural issues – the latest of which was the trial court dismissing with prejudice the indictment due to Speedy Trial Act violations.
The matter was back at the Fifth Circuit and recently the court issued this decision in which it affirmed the dismissal due to Speedy Trial Act violations, but reversed and remanded the dismissal with prejudice issue and ordered that a new judge be assigned to the case.
The decision begins by setting forth the following relevant background.
“Murta, a foreign national, was charged with conspiracy to commit money laundering, conspiracy to violate the Foreign Corrupt Practices Act, and money laundering. His indictment details a criminal conspiracy between two United States residents, Roberto Enrique Rincon Fernandez (“Rincon”) and Abraham Jose Shiera Bastidas (“Shiera”), their U.S. businesses, and various then-current and former officials of Petróleos de Venezuela, S.A. (“PDVSA”), Venezuela’s state-owned oil and energy company. The criminal enterprise was essentially a bribery and money laundering scheme: Rincon, Shiera, and their businesses would send money and gifts to PDVSA officials in exchange for contract awards and priority payment status during Venezuela’s liquidity crisis. Murta, then a citizen of Portugal and Switzerland, worked in Portugal for a wealth management firm and allegedly assisted the bribery and money laundering scheme by facilitating or fabricating various financial transactions. On March 20, 2018, Murta participated in an interview in Lisbon, Portugal with four officials from the United States Department of Homeland Security and one inspector with the Portuguese judicial police. He was interviewed about his relationships with members of the alleged international conspiracy and the business entities associated with it. More than a year later, on April 24, 2019, Murta was named in a superseding indictment filed in the Southern District of Texas, for his alleged involvement in the bribery and laundering scheme. Murta fought extradition for almost two years. After being transported to Houston, Murta made his initial court appearance on July 12, 2021.
Murta’s trial date was first set for August 30, 2021, but several district-wide special ends-of-justice continuance orders delayed his trial until October 13 at the earliest because of the COVID-19 pandemic. Consequently, on August 30, 2021, the district court reset the trial date to December 13, 2021. Pretrial proceedings continued for the next month and a half, without either party seeking a continuance or filing additional motions. Then, on November 8, 2021, the court entered a sua sponte ends-of-justice continuance order resetting the trial date to March 21, 2022. Neither the Government nor Murta objected to the court’s sua sponte continuance at the time it was entered.
Murta filed several dispositive motions between February 21 and February 24, 2022. On February 27, 2022, the Government filed a motion for a status conference concerning the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 §§ 1-16,1 asserting that the trial team had been alerted to the existence of potentially discoverable information that was protected by the statute. At the status conference, the Government represented that an intelligence agency had an interest in the protected information at issue, and that it would take several months to resolve the procedural issues involved with permitting the court to review the classified documents, necessitating a delay of trial. As a result, the district court entered another ends-of-justice continuance, which reset the trial date to July 25, 2022.
On July 11, 2022, however, the district court granted several of Murta’s dispositive motions, including his motion to dismiss on statute of limitation grounds and his motion to suppress the statements he had made during the 2018 interview in Lisbon. The Government appealed those decisions, and, following oral argument, another panel of this court reversed and remanded the case for further proceedings. United States v. Rafoi, 60 F.4th 982, 1007 (5th Cir. 2023) (“Murta I”). Following that remand, Murta filed renewed motions to dismiss on speedy trial grounds and to suppress on the theory that his statements during the same interview were involuntary. On May 16, 2023, the district court granted Murta’s motion to suppress, and, on the following day, granted his motion to dismiss. The Government appeals, contending that the district court erred in (1) its dismissal of the indictment for violation of both the Speedy Trial Act and the Speedy Trial Clause of the Sixth Amendment, and (2) its grant of Murta’s motion to suppress the statements he made during the 2018 pre-indictment interview in Lisbon.”
The first substantive issue the Fifth Circuit addressed was “whether the district court erred in determining that a Speedy Trial Act violation occurred.”
The decision notes:
“Following remand, Murta renewed his motion to dismiss the indictment for violation of the Speedy Trial Act, arguing that more than seventy days of non-excludable delay had elapsed before the commencement of trial. The district court agreed, specifically finding that 141 days of nonexcludable delay had elapsed from Murta’s initial appearance to the original dismissal of the indictment. Central to that finding was the district court’s conclusion that (1) twenty-nine days of non-excludable delay accrued between October 13, 2021, and November 10, 2021; and (2) the November 8, 2021 sua sponte ends-of-justice continuance order failed to toll the speedy trial clock “[b]ecause the requirements for excludable delay did not exist” at the time the order was entered, meaning that an additional fifty-nine days of non-excludable delay occurred between December 25, 2021, and February 21, 2022. Consequently, the district court dismissed the indictment with prejudice.
On appeal, the Government contends that the district court made several errors in its calculation of non-excludable time. The Government first asserts—and Murta does not meaningfully dispute—that the district court failed to properly calculate the period of non-excludable delay between October 13, 2021, and November 10, 2021, because the parties’ filing of pretrial motions during that time paused the speedy trial clock, pursuant to 18 U.S.C. § 3161(h)(1)(D). As the Government correctly observes, only twelve days of non-excludable delay elapsed during that period because the record reflects that pretrial motions were pending before the district court and paused the seventy-day clock until October 30. The Government next argues that the district court erroneously failed to exclude the fifty-eight days between December 25, 2021, and February 21, 2022, because the November 8 continuance order tolled the speedy trial clock. Murta disagrees, contending that the November 8 continuance was invalid. Both parties agree, however, that the determination of whether a Speedy Trial Act violation occurred turns on the validity of the district court’s November 8, 2021 sua sponte continuance order. If that continuance order failed to toll the speedy trial clock, then—as the Government concedes—a violation occurred and dismissal was proper. This is because, as both parties correctly note, fifty-eight additional days of non-excludable time accrued between December 25, 2021, and February 20, 2022, meaning that, as of February 20, 2022, seventy days of non-excludable time had elapsed before the commencement of trial.”
As to the substantive issues, the court concluded:
“We … conclude that the district court did not clearly err in its determination that the November continuance order failed to toll the speedy trial clock. Given the (1) twelve non-excludable days that accrued from October 30, 2021, to November 10, 2021; and (2) the fifty-eight nonexcludable daysthat accrued from December 25, 2021, to February 20, 2022, a total of seventy non-excludable days had elapsed by February 20, 2022.6 A Speedy Trial Act violation thus occurred, and the district court was bound to dismiss the indictment. See 18 U.S.C. § 3162(a)(2) (providing that the indictment “shall be dismissed on motion of the defendant” should trial not commence within seventy days from the filing of the indictment or the defendant’s initial appearance).”
The second substantive issue the Fifth Circuit addressed was “whether the District Court erred in dismissing the indictment with prejudice.”
The court stated:
“Having determined that, although the district court erred in its total calculation of non-excludable days, that court was correct in its ultimate conclusion that a Speedy Trial Act violation occurred, we must next determine whether the court erred in dismissing the indictment with prejudice. “The decision whether to dismiss a complaint under the Speedy Trial Act with or without prejudice is entrusted to the sound discretion of the district judge and . . . no preference is accorded to either kind of dismissal.” […] “When the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court’s judgment of how opposing considerations balance should not lightly be disturbed.” […] The statutory factors that the district court must consider in deciding whether to dismiss the indictment with or without prejudice are: (1) “the seriousness of the offense”; (2) “the facts and circumstances of the case which led to the dismissal”; and (3) “the impact of a reprosecution on the administration of this chapter and on the administration of justice.” 18 U.S.C. § 3162(a)(2). Our review will focus on the district court’s evaluation of the first and third of those factors.
As for the first factor, the district court correctly observed that the offense was relatively serious, given the penalties imposed for violation of 18 U.S.C. § 1956—particularly, that a conviction could carry up to twenty years of imprisonment. However, the court opined that “this factor is of little consequence since criminal charges are pending against Murta in Portugal.” The court cited to no authority to support the conclusion that charges pending in another country militate the severity of the crime under U.S. law and, even if it did, the Government correctly points out that although “Portuguese authorities have a pending investigation . . . no charges have been filed against Murta in Portugal.” We therefore conclude that the district court failed to properly consider this statutory factor, and we decline to afford any deference to its conclusion on this point.
The third factor concerns the “impact of a reprosecution on the administration of [the Speedy Trial Act] and on the administration of justice.” This factor “encompasses three concerns: (1) the defendant’s right to a timely trial; (2) the potential deterrent effect of a prejudicial dismissal on repeated violations of the Speedy Trial Act; and (3) the public’s interest in bringing the defendant to trial.” […] “Also implicated by this factor is the presence or absence of prejudice to the defendant.”
In a similar manner to its faulty analysis of the first factor, the district court weighed this third factor in favor of dismissal with prejudice, in part because “the people of Portugal have [as great a] stake in determining whether Murta’s conduct was of a criminal nature [as] the United States.” Again—just as with its evaluation of the first factor—the district court cited to no authority to support its conclusion that the interests of foreign citizens in prosecuting Murta supplant the interests of the American public in seeing him brought to trial in the United States. And, although that court did evaluate the prejudice to Murta resulting from the Speedy Trial Act violation as it relates to his mental and physical health, it failed to consider “the most serious type of prejudice, i.e., the possibility that [the] defense was impaired by the substantial delay experienced in this case.” Because the statutory factors were thus not properly considered, reversal is warranted and remand is appropriate for proper application of the test outlined in § 3162(a)(2).”
In so holding the Fifth Circuit exercised its discretion in ordering reassignment of the case on remand noting the “history of the case and some findings of the district judge not discussed” in the opinion.
