As highlighted in this prior post, in 2019 Daisy Rafoi-Bleuler (a citizen of Switzerland and partner in a Swiss Wealth Management firm) was criminally charged with Foreign Corrupt Practices Act and related offenses for allegedly directing bribes to various individuals at PDVSA (Venezuela’s state-owned and state-controlled energy company).
As highlighted in this post, a judge recently dismissed the Foreign Corrupt Practices Act (and related charges) for lack of jurisdiction while also hinting that the term “agent” in the FCPA is unconstitutionally vague.
In pertinent part, the judge stated:
“Jurisdiction over the defendant under the FCPA rests in whether the government can establish that the defendant was an “officer, director, employee or agent” of a domestic concern. Congress has determined that the FCPA does not apply extraterritorially to a foreign national beyond these four categories.
The government asserts that the defendant was an agent of a domestic concern. In this case, however, agency is more than a fact to be proved as part of a criminal act; it is jurisdictional. Hence, agency does not exist simply because the government alleges in the [Indictment] that the defendant committed certain acts. Agency must be established, apart from the facts that support the charge. Agency, in this context, raises a question of law that must be established in a way that satisfies the jurisdictional requirements of the statute.
When there is no allegation that an agent of a domestic concern acted unlawfully while in the United States, establishing that agency exists as the jurisdictional basis for a criminal charge requires direct evidence of an agency relationship, apart from other types of professional relationship. As a matter of law, it requires undisputed evidence of mutual assent and control over the details of the person and agency, such that the principal controls the details over the assignment. Absent direct or undisputed evidence, an agency does not exist.
It is conceded by the government that the defendant as a foreign national and has no ties to the United States. The “ties” that the government relies upon are communications through the interstate commerce. This approach does not present direct evidence that the defendant was an agent, as a matter of law. Nevertheless, the government points to acts by the defendant contained in [various paragraphs of the Indictment]. These recorded acts, allegedly committed by the defendant in behalf of the codefendants, specifically related to the codefendant’s conduct committed in Venezuela and the United States. They do not point to any act by the defendant committed in either nation. Hence, no agency relationship is established in the United States by the alleged acts.”
Earlier this week, the DOJ filed a notice of appeal which states:
“The United States of America hereby appeals to the United States Court of Appeals for the Fifth Circuit the Order of this Court entered on November 10, 2021 in which the Court granted Defendant Daisy Teresa Rafoi Bleuler’s Motion to Dismiss Counts One, Two, and Three of the Superseding Indictment and dismissed the Superseding Indictment with prejudice as to Defendant Daisy Teresa Rafoi Bleuler.”