In 2018, the DOJ unsealed criminal charges against Raul Gorrin Belisario, a prominent Venezuelan businessman and described by the DOJ as a citizen and national of Venezuela who at various time periods relevant to the charges was a resident of the U.S. with a residence in Florida. (See here).
According to the criminal indictment, Gorrin “offered and agreed to pay bribes to Foreign Official 1 [described as a high-level official with decision-making authority and influence within the Oficina Nacional del Tesoro (ONT), the Venezuelan National Treasury] for purposes of obtaining and retaining business; specifically, influencing and inducing Foreign Official 1 to permit Gorrin to conduct foreign currency exchanges for the Venezuelan government and securing an improper advantage in acquiring the right to conduct such exchange transactions.”
In addition to the FCPA charge, Gorrin was also charged with conspiracy to commit money laundering and several substantive money laundering offenses.
Two of the alleged bribe recipients – Claudia Patricia Díaz Guillen and her husband Adrian Jose Velasquez Figueroa – were also criminally charged and found guilty of money laundering charges in a U.S. trial in 2022. (See here). In mid 2023, the two individuals were sentenced to 15 years in federal prison. (See here).
Diaz Guillen and Velasquez Figueroa (Defendants) appealed their convictions to the Eleventh Circuit and one of the issues on appeal is whether sufficient evidence proved that Gorrin was a “resident of the United States” under the FCPA’s anti-bribery provisions.
This issue matters because certain of the criminal charges the Defendants were convicted of require a “specified unlawful activity” and the DOJ charged that the “specified unlawful activity” were violations of the FCPA’s anti-bribery provisions as well as Venezuelan laws involving bribery of a public official or misappropriation, theft, and embezzlement of public funds.
The DOJ charged that the underlying bribery schemes violated the FCPA because Gorrin was a “domestic concern” under the FCPA (78dd-2). The FCPA defines “domestic concern” in pertinent part as “any individual who is a citizen, national, or resident of the United States.”
Defendants assert that Gorrin was not a “resident” of the United States.
The DOJ says yes he was and states as follows in its appellate brief.
“Sufficient evidence proved that Gorrin was a “resident of the United States,” and therefore a “domestic concern,” under 15 U.S.C. § 78dd-2. Gorrin viewed the United States as a potential safe haven from Venezuelan law enforcement, owned and maintained property and valuable assets in south Florida, spent substantial time in the United States in 2011 and 2012, and conducted business affairs from the United States. The jury reasonably could conclude that Gorrin had a temporary dwelling in the United States with the intent to return to it, which meets the ordinary meaning of a U.S. “resident.”
According to the DOJ (internal citations omitted):
“Because the FCPA does not define “resident,” the term must be given its plain or ordinary meaning around the time the domestic-concern provision was enacted, in 1977. […] Dictionaries contemporaneously defined “resident” as “one who resides in a place: one who dwells in a place for a period of some duration—often distinguished from inhabitant.” […] The verb “reside” includes “[t]o dwell permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place.” […] A “residence” includes “a temporary or permanent dwelling, place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit.”
As the last definition makes clear, a resident need not live permanently or have a fixed abode in the locality in question—a “temporary” dwelling may be sufficient. Indeed, a resident is distinct from a domiciliary: “[r]esidence is the act or fact of living in a given place for some time, while domicile is a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” “One may have more than one residence in different parts of this country or the world, but a person may have only one domicile.”
Congress did not disturb the ordinary meaning of “resident” in defining “domestic concern” under the FCPA. Other provisions of the United States Code refer to a “permanent” resident or residence. But Congress used the unqualified term “resident” in [the FCPA], thereby signaling its intent to capture, inter alia, one who “‘dwell[s] … for a considerable time’” in the United States […] or one who has a “‘temporary … dwelling, place, abode, or habitation’” in the United States, to which he “‘intends to return as distinguished from a place of temporary sojourn or transient visit.’”
According to the DOJ, a jury could reasonably conclude that Gorrin was a “resident” of the United States for the following reasons:
“First, Gorrin owned a house in Miami, in addition to several apartments or an apartment building. And he was personally involved in maintaining his properties: Joel Brakha, the owner of Miami-based Interglobal Yacht, testified that Gorrin asked him for referrals related to work needed at the properties, including landscaping, pool maintenance, and installation of an electric generator. Brakha also helped Gorrin purchase automobiles. The jury reasonably could find that Gorrin’s ownership and upkeep of property in Florida reflected his establishment of at least a temporary dwelling with the intent to return to it.
Second, Gorrin spent substantial time in the United States. Brakha testified that Gorrin was in the United States “[q]uite often,” sometimes “once a month.” Official records of Gorrin’s travel into and out of the United States, as maintained by U.S. Customs and Border Protection (“CBP”), confirmed this fact. These border-crossing records show that Gorrin spent more than 100 days in the United States in each of 2011 and 2012—approximately 30% of his time. Each year, Gorrin was present in the United States on at least 12 different occasions. In 2011, eight of Gorrin’s stays lasted a week or longer, with his longest stay lasting 17 days. In 2012, six of Gorrin’s stays lasted longer than a week, with his longest stays lasting 29, 16, and 14 days. The CBP records also show that Gorrin traveled to and from the United States almost exclusively on private U.S.-registered airplanes, as denoted by “N” tail numbers.
Third, Gorrin used a Miami-based company, Interglobal Yacht, to purchase, service, and maintain his yachts (including those purchased for defendants). The jury could find that Gorrin’s possession of such valuable assets in the locality where he maintained a dwelling and spent so much time was further evidence of his U.S. residency.
Fourth, Gorrin conducted business affairs from the United States.
[…]
In sum, Gorrin relied on the United States as a possible safe haven from Venezuelan law enforcement, owned valuable property and assets in the United States, and maintained a substantial presence and conducted business affairs here. Drawing all reasonable inferences in favor of the guilty verdict, the jury could find that Gorrin was a U.S. resident between 2011 and 2013, i.e., that he had a temporary dwelling, place, abode, or habitation in the United States with the intent to return to it.”
