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5th Circuit says overseas FCPA ‘witness’ wasn’t entitled to Miranda warning

Miranda warnings or their absence are rarely a factor in FCPA cases. Most individuals accused of FCPA violations take plea deals, and what happens procedurally before the plea probably doesn’t matter later.

But a trial court in Texas had the chance in an FCPA case to consider the issue. It decided a foreign citizen interviewed overseas should have received a Miranda warning but didn’t, and partly on that basis threw out his indictment.

Then in February this year, the 5th Circuit Court of Appeals stepped in to overturn the lower court, saying the defendant wasn’t entitled to a Miranda warning, and sending the case back for trial.

Here’s the background.

On March 20, 2018, a 53-year-old Portuguese citizen named Paulo J.D.C. Casqueiro-Murta appeared at the office of the public prosecutor in Lisbon, accompanied by his Portuguese lawyer. Five days earlier, the prosecutor had summoned Murta for questioning.

Agents from the U.S. Department of Homeland Security — which was leading a sprawling investigation into corruption at Venezuela’s state oil company known as PDVSA — wanted to ask Murta what he knew about bank accounts and shell companies allegedly used to handle PDVSA-related bribe money.

During the day-long interview, the agents told Murta repeatedly he was not a suspect but a witness and they wanted his help. But some of his answers included what the DOJ later called “a number of questionable statements.”

Thirteen months after his interview in Lisbon, a federal grand jury indicted Murta, charging him with one count of FCPA conspiracy and three related money-laundering counts. The indictment accused him of helping set up bank accounts where bribe payments to co-conspirators could be deposited. He also allegedly helped disguise the purpose of the payments, where the money came from, and who owned the bank accounts involved.

Murta pleaded not guilty. Last July, the federal district court in Houston dismissed all charges. One of several grounds for dismissal was that the two Homeland Security agents who questioned him in Portugal deprived him of his constitutional right to a Miranda warning. (“You have the right to remain silent. Anything you say can and will be used against you in a court of law. . . .”)

The DOJ appealed and won.


Miranda warnings are required when there’s anything equivalent to “a station-house interrogation.” The 5th Circuit said Murta’s interview wasn’t like that.

He was not in police custody (as defined by courts considering Miranda cases). There were no restraints on his movement, and his lawyer was with him at all times.

The questioning in a conference room at the public prosecutor’s office wasn’t threatening or aggressive. He hadn’t been indicted then and at no time during the interview was he accused of committing a crime or threatened with arrest.

Who was there? In addition to Murta and his lawyer, there was a Portuguese judicial police inspector and the two agents from Homeland Security — described as Homeland Security Investigations (HSI) legal attachés — and two translators who were Portuguese. The HSI agents asked all the questions.

No one at the interview had the legal authority to arrest Murta, the 5th Circuit said. “No one was armed, and no one was wearing police attire. [Murta] was not handcuffed, and his liberty was not restrained in any way.”

The interview started at 10 am and ended at 6:50 pm but wasn’t continuous. There were two 15-minute breaks, one in the morning and one in the afternoon. There was a 75-minute lunch break. Murta and his lawyer left the building and returned after lunch at about 2:30 pm. The HSI agents asked more questions until about 4:30.

Murta and his lawyer stayed at the prosecutor’s office for two more hours. They waited while notes taken by one of the translators were compiled into a draft Q&A document in Portuguese and English called a Record of Examination. They reviewed the draft and suggested changes, which the Portuguese attendees made. They initialed each page of the final 16-page version and signed the last page. All other attendees, including the HSI agents, then initialed and signed the Record of Examination, and Murta and his lawyer departed at 6:50 pm.

The 5th Circuit characterized Murta’s questioning as “bland, non-accusatory and cooperative [in] tone throughout.” It said, “Murta’s attorney’s presence and involvement for the entirety of the interview, including the fact that he reviewed and signed off on the interview notes, dispels the compulsion inherent in custodial surroundings.”

But at one point during the interview, Murta allegedly said he didn’t know who Abraham Shiera was and had never corresponded with him. Shiera, a Florida-based businessman, had already admitted bribing PDVSA officials. Two years before Murta’s interview, Shiera had pleaded guilty to one count of conspiracy to violate the Foreign Corrupt Practices Act and commit wire fraud and one count of violating the FCPA.

“After the U.S. agents showed [Murta] emails and text messages between him and Shiera, [Murta] changed his story, and admitted he did know Shiera, and had met and worked with him,” the DOJ said in a court filing.


Paulo Murta was extradited to Houston in July 2021 (more than two years after his indictment) and now faces trial there.

His indictment is not evidence of guilt, and he is presumed innocent unless convicted in a court of law.

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