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Motion To Dismiss Argues That The DOJ’s Case “Continues The Worrisome Trend By The DOJ To Stretch The Reach Of The United States’ Criminal Statutes Beyond Congress’ Intent In An Attempt To Police The World”


As highlighted in this prior post, in 2019 Daisy Rafoi-Bleuler (a citizen of Switzerland and partner in a Swiss Wealth Management firm) became the latest individual to be criminally charged with Foreign Corrupt Practices Act offenses for allegedly directing bribes to various individuals at Venezuela’s state-owned and state-controlled energy company, PDVSA.

According to the DOJ, Rafoi opened Swiss bank accounts and facilitated financial transactions for various co-conspirators to help facilitate the bribery scheme.

As highlighted in this post, in late October 2020, Rafoi-Bleuler (through her counsel Matthew Reinhard, Andrew Wise, and Margot Laporte at Miller & Chevalier) filed a motion to dismiss the criminal charges against her.

In summary fashion, the motion argues:

“The indictment of Ms. Rafoi-Bleuler, a citizen and resident of Switzerland, continues the worrisome trend by the Department of Justice to stretch the reach of the United States’ criminal statutes beyond Congress’ intent in an attempt to police the world. Despite having violated no laws in Switzerland and having no contact with the United States (let alone with the state of Texas), Ms. Rafoi-Bleuler finds herself hailed into a U.S. court in contravention of clear statutory language, legal precedent, and international norms. Courts have increasingly, and correctly, rejected such attempts by the government and this Court should continue as well by dismissing Counts One, Two, and Three of the Superseding Indictment against Ms. Rafoi-Bleuler.

Ms. Rafoi-Bleuler stands indicted on various conspiracy and money laundering counts because her Swiss wealth management firm—in strict accordance with Swiss anti-money laundering and other financial laws and regulations—took on as clients certain individuals connected to (or alleged to be connected to) corrupt schemes involving Venezuela’s state-owned oil company, Petróleos de Venezuela S.A. (“PDVSA”). While the Superseding Indictment is  quick to link Ms. Rafoi-Bleuler to unsavory characters embroiled in the PDVSA scheme, it notably does not link her or her conduct to the United States, or sufficiently allege foundational elements of knowledge and intent. Rather, it falls back on the increasingly popular crutches of “conspiracy” and “agency” that the United States uses to pursue foreign nationals it otherwise lacks jurisdiction over. Here, however, the sparse allegations of the Superseding Indictment are insufficient to stretch the government’s already tenuous legal theories into a sufficient basis for this Court to assert jurisdiction over Ms. Rafoi-Bleuler. The government’s charges all fail.

First, Count Two charging Ms. Rafoi-Bleuler with conspiracy to violate the U.S. Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. §§ 78dd-1 et seq., is legally defective. Ms. Rafoi-Bleuler, a Swiss citizen, is not alleged to have engaged in any conduct in the United States, and is therefore excluded from the FCPA’s extraterritorial reach. The government cannot circumvent congressional intent by recourse to the conspiracy statute. Supreme Court and Fifth Circuit Court of Appeals precedent holds that when Congress affirmatively chooses to exclude a certain class of individuals from liability under a criminal statute, the government cannot circumvent that intent by alleging conspiracy.

The government, plainly aware of these strict limitations to the FCPA’s extraterritorial reach, seeks to skirt congressional intent by alleging that Ms. Rafoi-Bleuler was an “agent” of a “domestic concern.” The government’s agency theory is belied by the Superseding Indictment’s factual allegations, which instead show that Ms. Rafoi-Bleuler was, at most, a contractual service provider. Thus, because the Superseding Indictment does not describe conduct bearing any semblance to an agency relationship, the FCPA conspiracy charge does not apply to Ms. Rafoi-Bleuler’s purely extraterritorial conduct and Count Two should be dismissed.

Second, the Superseding Indictment’s application of the term “agent” to Ms. Rafoi-Bleuler renders the FCPA unconstitutionally vague as applied to her. Such a construction of the term “agent” could not have provided Ms. Rafoi-Bleuler with fair notice that her alleged conduct—primarily correspondence with “domestic concerns”—could expose her to criminal liability in the United States. Particularly as the Superseding Indictment does not allege that Ms. Rafoi-Bleuler’s conduct in any way violated the law of Switzerland. As such, Count Two is also constitutionally flawed and should be dismissed.

Third, the money laundering charges in Counts One and Three are legally defective. The Superseding Indictment, which does not allege that Ms. Rafoi-Bleuler conducted or even attempted to conduct the alleged money laundering transaction, fails to state a substantive money laundering offense as to her. Moreover, because all of Ms. Rafoi-Bleuler’s alleged conduct occurred outside the United States, the government cannot overextend the reach of the money laundering statute to her alleged conduct in Switzerland. Finally, given the pronounced defects with the substantive money laundering charge, the conspiracy and aiding and abetting charges in Counts One and Three also necessarily fail.”

Elsewhere, the motion argues:

“To find that Ms. Rafoi-Bleuler, a non-resident foreign national who did not commit any acts in the United States or work for a U.S. company, is subject to the FCPA’s jurisdiction on the basis of the government’s overly broad reading of the term “agent” would stretch the FCPA and the concept of agency far beyond what Congress intended. Doing so risks the undesirable result of subjecting to the FCPA’s jurisdiction every foreign national who provides services relating to domestic concerns’ foreign bank accounts, including employees of non-U.S. wealth management firms, hedge funds, private equity firms, and financial institutions throughout the world, even if they never set foot in the United States or work for a U.S. company.”

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