United States v. Bleuler

• Decision Date: 28 February 2023
• Docket Number: 21-20658,22-20377
• Parties: United States of America, Plaintiff-Appellant, v. Daisy Teresa Rafoi Bleuler, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Paulo Jorge Da Costa Casquiero Murta, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

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United States of America, Plaintiff-Appellant, v. Daisy Teresa Rafoi Bleuler, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Paulo Jorge Da Costa Casquiero Murta, Defendant-Appellee.

Nos. 21-20658, 22-20377

United States Court of Appeals, Fifth Circuit

February 28, 2023

Appeals from the United States District Court for the Southern District of Texas USDC Nos. 4:17-CR-514-7 4:17-CR-514-8

Before GRAVES, WILLETT, and ENGELHARDT, Circuit Judges.

KURT D. ENGELHARDT, CIRCUIT JUDGE

This appeal concerns an alleged international bribery scheme between U.S.-based businesses and Venezuelan officials. On defendants-appellees' motions, the district court dismissed all counts charged against them and suppressed statements made during an interview. The government timely appealed. We REVERSE and REMAND.

I. Background:

According to the indictment, Daisy Teresa Rafoi Bleuler ("Rafoi"), a citizen of Switzerland and a partner in a Swiss wealth-management firm, and Paulo Jorge Da Costa Casqueiro Murta ("Murta"), a citizen of Portugal and Switzerland and an employee of a different Swiss wealth-management firm, (together, "Defendants"), engaged in an international bribery scheme wherein U.S.-based businesses paid bribes to Venezuelan officials for priority payment of invoices and other favorable treatment from Venezuela's state-owned energy company. The indictment alleges that between 2011 and 2013, Defendants, working as agents for their co-conspirators, laundered the proceeds of the bribery scheme through numerous financial transactions, including through international wire transfers to and from bank accounts that they opened overseas in the names of various companies. Specifically, the indictment provides that in the Southern District of Texas and elsewhere, Defendants communicated with their co-conspirators through e-mail, phone, and various messaging applications to set up bank accounts into which their co-conspirators' bribe payments could be deposited and created false justifications for those payments to conceal and disguise their nature, source, and ownership. There is no allegation that Rafoi was ever physically present in the United States during the scheme.^[1] Murta, however, purportedly traveled to Miami, Florida, to meet with co-conspirators in furtherance of the scheme.

A grand jury returned a nineteen-count indictment charging Defendants and others with: (1) conspiring to commit money laundering, in violation of 18 U.S.C. § 1956(h); (2) conspiring to violate the Foreign Corrupt Practices Act (the "FCPA"), in violation of 18 U.S.C. § 371 and 15 U.S.C. §§ 78dd-2(a), 78dd-3(a); and (3) money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 2 (Rafoi) and 18 U.S.C. §§ 1956(a)(2)(A), 2 (Murta). Both Defendants moved to dismiss the indictment. In addition, Murta moved to suppress statements made during a March 2018 interview. The district court granted the three motions. This appeal followed.

II. Subject-matter jurisdiction:

We begin by examining subject-matter jurisdiction. We review the district court's legal determination regarding subject matter jurisdiction de novo. United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015) (citing United States v. Urrabazo, 234 F.3d 904, 906 (5th Cir. 2000)). The district court concluded that the FCPA and money-laundering statute did not apply extraterritorially to Defendants, and thus the court did not have subject-matter jurisdiction. The court reasoned that "[j]urisdiction over [Defendants] under the FCPA rests in whether the government can establish that [he or she] was an 'officer, director, employee or agent' of a domestic concern."^[2] Because there was no "direct or undisputed evidence" of an agency relationship in the United States, the court found that it lacked jurisdiction to adjudicate the case. The money-laundering counts failed as well, said the court, because: (1) Rafoi did not commit some portion of the offenses "while in the United States"; and (2) there were no allegations that (a) Murta was in the United States "at the time the alleged transactions occurred, or that he initiated, or attempted to initiate them, from within the United States," or (b)" any of the communications or acts . .. occurred in the United States." The court's dismissal on jurisdictional grounds was in error.

"In the criminal context, subject matter jurisdiction is straightforward." Id. at 654 (citing United States v. Scruggs, 714 F.3d 258, 262 (5th Cir. 2013)). Title 18 U.S.C. § 3231 provides that "[t]he district courts of the United States shall have original jurisdiction ... of all offenses against the laws of the United States." "To invoke that grant of subject matter jurisdiction, an indictment need only charge a defendant with an offense against the United States in language similar to that used by the relevant statute." Scruggs, 714 F.3d at 262 (quoting United States v. Scruggs, 691 F.3d 660, 668 (5th Cir. 2012)) (internal quotation marks omitted). "That is the extent of the jurisdictional analysis: 'a federal criminal case is within the subject matter jurisdiction of the district court if the indictment charges that the defendant committed a crime described in Title 18 or in one of the other statutes defining federal crimes.'" Id. (quoting United States v. Gonzalez, 311 F.3d 440, 442 (1st Cir. 2002)) (alterations omitted). So, the district court had subject-matter jurisdiction under 18 U.S.C. § 3231.^[3]

Moreover, whether a statute reaches extraterritorial acts is not a challenge to the district court's subject-matter jurisdiction. United States v. Rojas, 812 F.3d 382, 390 (5th Cir. 2016); see also United States v. Vasquez, 899 F.3d 363, 371 (5th Cir. 2018) ("An argument that a statute does not apply extraterritorially is not an argument that the court lacks jurisdiction."). Rather, "[e]xtraterritoriality 'is a question on the merits rather than a question of a tribunal's power to hear the case.'" Vasquez, 899 F.3d at 371 (quoting Rojas, 812 F.3d at 390); see also Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 253-54 (2010) (concluding that the extraterritorial reach of a statute raises a "merits question," not a question of subject-matter jurisdiction). Therefore, because extraterritoriality concerns the merits of the case, not the court's power to hear it, the district court erred in concluding that it lacked subject-matter jurisdiction over these counts.

III. The FCPA:

Next, we consider the court's dismissal of the FCPA-conspiracy charges on the grounds that the indictment did "not establish that the defendant was an 'agent' to satisfy the jurisdictional requirements of the statute." This Court reviews the sufficiency of an indictment de novo. United States v. Lawrence, 727 F.3d 386, 397 (5th Cir. 2013). The government contends that the FCPA-conspiracy charges are valid under two theories. First, that Rafoi and Murta are directly liable as enumerated actors. And second, that Rafoi and Murta are secondarily liable as conspirators with enumerated actors. We address each in turn.

A. Liability as enumerated actors:

In pertinent part, enumerated actors under the FCPA are:

(1) any domestic concern, other than an issuer which is subject to section 78dd-1 of this title, or for any officer, director, employee, or agent of such domestic concern or any stockholder thereof acting on behalf of such domestic concern, 15 U.S.C. § 78dd-2(a) (emphasis added); or

(2) any person other than an issuer that is subject to section 78dd-1 of this title or a domestic concern (as defined in section 78dd-2 of this title), or for any officer, director, employee, or agent of such person or any stockholder thereof acting on behalf of such person, while in the territory of the United States, 15 U.S.C. § 78dd-3(a) (emphasis added).

The government contends that the indictment sufficiently alleges that Rafoi and Murta are agents of a domestic concern under § 78dd-2 and that Murta is liable as a person who acted while in the United States under § 78dd-3. We agree.

i. Rafoi and Murta's potential liability under § 78dd-2:

We first address the indictment's allegations that Defendants are liable as agents of a domestic concern. "The validity of an indictment is governed by practical, not technical considerations, and the basic purpose behind an indictment is to inform a defendant of the charge against him." United States v. Fairley, 880 F.3d 198, 206 (5th Cir. 2018) (quoting United States v. Cooper, 714 F.3d 873, 877 (5th Cir. 2013)) (internal quotation marks and alterations omitted). "An indictment is legally sufficient if (1) each count contains the essential elements of the offense charged, (2) the elements are described with particularity, and (3) the charge is specific enough to protect the defendant against a subsequent prosecution for the same offense." Id. (quoting Cooper, 714 F.3d at 877) (internal quotation marks omitted).^[4]

While Defendants argue that the factual allegations in the indictment do not support the government's conclusion that they are agents of a domestic concern, "[a] defendant may not properly challenge an indictment sufficient on its face, on the ground that the allegations are not supported by adequate evidence, for an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on the merits." United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975) (citing Costello v. United States, 350 U.S. 359, 363 (1956)). That is because "a defendant's constitutional right to know the offense with which he is charged must be distinguished from a defendant's need to know the evidentiary details establishing the facts of such offense, which can be provided through a motion...