As highlighted in this post, Judge Kenneth Hoyt (S.D. Tex) recently granted Paulo Casqueiro-Murta’s motion to dismiss Foreign Corrupt Practices Act (and related charges).
Judge Hoyt found, not just one, not just two, not just three, but four separate legal reasons for granting the dismissal. Moreover, because of these various reasons, Judge Hoyt found it unnecessary to decide Murta’s motion to dismiss based on a violation of the Speedy Trial Act.
In other words, it was a resounding victory for Murta.
However, victories as a defendant in a criminal case come at a high cost.
It is easy for those in the Foreign Corrupt Practices Act space (myself included) to sometimes think of individual defendants as “just a name” that gets inserted in a client alert or media article.
However, to state the obvious these are real people, with real families and real world concerns and issues.
As discussed in the prior post, the DOJ is seeking a stay of Judge Hoyt’s dismissal order and argued in pertinent part:
“[T]he “drastic consequences” if this Court erred in ordering dismissal of the charges against Murta militate in favor of a stay. Murta is charged for his role in a sprawling foreign bribery and money laundering scheme. Society has a significant interest in those charges being adjudicated. If this Court erred in dismissing the indictment and no stay is granted, those societal interests will be thwarted. Murta was extradited to the United States by Portugal after a lengthy process of appeals to multiple European courts – a process that took over two years. He has no legal status in the United States. If the dismissal order is not stayed, he is likely to leave of his own volition or be deported to Switzerland or Portugal in the near future. In the event that Murta returns to Switzerland, it is unlikely that the Swiss authorities would extradite him to the United States. If Murta returns to Switzerland, and the Fifth Circuit ultimately rules that this Court erred in dismissing the charges against Murta, the societal interest in his prosecution will be frustrated.”
Murta’s brief opposing the requested stay highlights the human element of criminal prosecutions – in Murta’s case of a foreign national. The brief states in pertinent part:
“If a stay is denied, Mr. Murta will return home so that he can resume his normal life and reunite with and support his family, but his presence in Europe will not inevitably “frustrate” the interests of justice. The government has shown no irreparable injury in this case. The government offers only speculation and a theoretical worst-case scenario where Mr. Murta will not face American prosecution if he were to lose on appeal. See Dkt. 333 at 2–3 (arguing that Mr. Murta might leave to either Switzerland or Portugal, and if he goes to Switzerland, it is unlikely that he would be extradited to the United States; but saying nothing about if he goes to Portugal).
To the contrary, the record points to Mr. Murta’s compliance with court obligations, even when overseas, rather than any inclination to flee. Mr. Murta’s actions in Portugal, before he was extradited in 2021, speak volumes. Rather than “flee” to Switzerland to avoid a Portuguese criminal investigation he has known about since 2017, Mr. Murta remained in Portugal and abided by all conditions set by the courts there. Through four years of investigation, four separate searches of his Portuguese properties, and seizure of his telephonic, computer, and electronic equipment … Mr. Murta never attempted to flee. Even after Mr. Murta was arrested in Portugal in 2019 on the United States’ warrant in this case, he was released on bond and never fled in the two years before his extradition to this country. Finally, since this Court released Mr. Murta on bond in March, he has been entirely compliant with his bond conditions and has never attempted to flee. The record simply does not support an argument that Mr. Murta will flee or become unreachable if he returns home while any government appeal proceeds. The record, in fact, shows the exact opposite — and that was pre-dismissal, when a defendant might have more incentive to flee, rather than postdismissal, after a federal court has concluded, after extensive briefing and careful analysis, that the prosecution should not have been brought in the first place.
As the government admits, it has already once brought Mr. Murta from Europe to face prosecution in this country through the extradition process. The government offers no evidence that it could not do so again, in the unlikely event it prevails on appeal, in both the Fifth Circuit and the Supreme Court, at an undetermined point in the unknown future.
Mr. Murta posted a bond of 750,000 Euros (the equivalent of roughly $766,050 at today’s exchange rate) for a pending Portuguese proceeding, and that bond is still in place. That bond requires Mr. Murta to appear for legal proceedings in Portugal whenever summoned, and he would forfeit the entire bond of 750,000 Euros if he were to fail to appear. There is no reason to believe that Mr. Murta will flee or disappear — he has a significant financial interest in remaining compliant with all his court obligations.
In this case, a stay would inflict extensive, life-altering harm upon Mr. Murta, who is stuck in a foreign country where he cannot work or earn a living and has no legal status. A stay might well bankrupt him, as each day he is required to pay for an apartment, medical bills (recall that Mr. Murta has a serious health condition involving his hearing that requires specialized and frequent medical care from an ENT), and other living expenses without being allowed to seek employment, due to immigration laws prohibiting him from working in the United States.
A brief summary of Mr. Murta’s life over the last three years in in order: Mr. Murta was first arrested on the United States’ warrant in Portugal in May 2019. He was released the next day pending extradition proceedings, but he was arrested again on June 2, 2021, after his extradition became final. After that, he remained in continuous custody until this Court ordered him released on March 10, 2022. Mr. Murta will never get back those 282 days behind bars, all based on a prosecution that stretched the bounds of the law. Since his release, Mr. Murta has remained under house arrest in the United States (to him a foreign country), wearing a GPS ankle monitor, after having placed $75,000 of his savings into the registry of the Court. Every day this prosecution continues, Mr. Murta cannot work and cannot see his family, except his wife, who has been able to come to the United States while his case is pending. Mr. Murta’s liberty and his livelihood are substantially harmed every day this case goes on.”