FCPA Charges Dismissed Due To DOJ’s Unduly Delayed Prosecution
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  • FCPA Charges Dismissed Due To DOJ’s Unduly Delayed Prosecution

    On June 7, 2023, a United States District Judge in the Southern District of Texas dismissed conspiracy charges related to Foreign Corrupt Practices Act (“FCPA”) and money laundering violations brought against Paulo Jorge Da Costa Casquiero Murta (“Murta”) by the Department of Justice, finding that prosecutors had intentionally caused delays in Murta’s trial, in violation of both the Speedy Trial Act and Murta’s Sixth Amendment right to a speedy trial.  United States v. Murta, 4:17-CR-00514-8 (S.D. Tex. June 6, 2023).  Murta, who had been in U.S. custody since July 2021, argued that despite his repeated demands for a speedy trial, the government had intentionally delayed his trial.  The Court agreed and dismissed the charges against Murta with prejudice, finding that DOJ’s prosecutors had acted in bad faith.

    The Speedy Trial Act requires a criminal defendant’s trial to commence within 70 days after he is charged by indictment or information, or makes an initial appearance, whichever is later.  18 U.S.C. § 3161(c)(1).  Periods of delay may be excluded if they result from any pretrial motions, but even then the excluded period of delay cannot exceed 30 days.  Id. at § 3161(h)(1)(D), (h)(1)(H).  In the event a trial does not occur within the time limits provided by the statute, a defendant may move for dismissal of the charges against him.  The Speedy Trial Act provides that the charges “shall” be dismissed, with the court determining in its discretion whether the dismissal is with or without prejudice.  18 U.S.C. § 3162(a)(2).

    A criminal defendant also has a right to a speedy trial under the Sixth Amendment to the United States Constitution.  To determine whether a defendant’s Sixth Amendment right has been violated, courts consider four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.  Barker v. Wingo, 407 U.S. 514, 532 (1972).

    Here, Murta made his initial appearance in July 2021 after being extradited from his home country of Portugal.  In August 2021, the Court stated that it would be entering an extended schedule due to a surge of COVID-19 cases.  At this point, Murta raised concerns about receiving a speedy trial, and he continued to raise them throughout the case.  Murta’s trial was initially set for December 2021, but it was later moved to March 2022 despite neither side requesting a continuance.  However, Murta nonetheless argued that this delay was the government’s fault and filed a motion to dismiss under the Speedy Trial Act and Sixth Amendment in February 2021.

    Shortly after Murta filed his motion, the government filed a motion stating that it was in possession of classified information relevant to the case and required a hearing.  In dismissing the charges against Murta, the Court noted that it “was led to believe that it was a matter of National Security and that the Court must conduct a [Classified Information Procedures Act] status conference to determine the admissibility of such information and any terms of disclosure to Murta.”  However, the Court ultimately determined that the government had in fact deliberately raised the existence of the classified information to further delay Murta’s trial, explaining that the classified information was clearly irrelevant to the case and that the government “had access to [it] for an undetermined number of months prior to December 2021,” but only chose to disclose the existence of this classified information in March 2022 after Murta filed his motion to dismiss.  The Court found that “the government’s word and conduct breached the wall of credibility,” and that its use of the classified information to delay Murta’s trial was “an act of bad faith that cannot be excused based on negligence or inadvertence.”[1]

    The Court further found that the government had also violated Murta’s Sixth Amendment right to a speedy trial for much of the same reasons it violated the Speedy Trial Act.  The Court additionally found that Murta had been prejudiced by the government’s conduct, citing “damage to [Murta’s] long-term health due to inadequate medical care while incarcerated,” and Murta’s long-term incarceration in a foreign country away from his family.  In light of Murta’s suffering, the Court concluded, the dismissal was to be with prejudice.
    [1] In July 2022, while Murta’s motion to dismiss under the Speedy Trial Act and Sixth Amendment was pending, the Court granted a motion to dismiss the charges against Murta on unrelated grounds.  The government successfully sought reversal by the Fifth Circuit Court of Appeals, and upon remand, argued that Murta’s speedy trial motion was moot because of “a new 70-day clock now that the Fifth Circuit ha[d] reversed the court’s [prior] decision.”  The Court rejected this argument, reasoning that “the [Speedy Trial Act] never intended to permit the government to violate the [Speedy Trial Act], prior to a dismissal on other grounds, and when the case is reinstated, escape the consequences of unseemly conduct prior to dismissal.”
    Categories: DOJFCPA

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