In connection with an alleged bribery scheme involving Venezuela’s state-owned and state-controlled energy company PDVSA, Judge Kenneth Hoyt (pictured) has already granted a motion to dismiss filed by Daisy Rafoi-Bleuler in November 2021 (see here for the prior post) as well as co-defendant Paulo Casqueiro-Murta in July 2022 (see here for the prior post). The legal deficiencies found by Judge Hoyt (S.D. Tex.) included lack of jurisdiction, lack of due process, vagueness, and statute of limitation issues.
Pending before Judge Hoyt is another motion to dismiss filed by co-defendant Nervis Gerardo Villalobos-Cardenas.
As discussed in this post, the motion raises similar issues to the prior motions to dismiss granted by Judge Hoyt.
In summary fashion, the motion to dismiss filed by Villalobos in February 2022 states:
“[T]his Court recently dismissed the superseding indictment as to defendant Daisy Rafoi-Bleuler – who was charged with the same three offenses as Mr. Villalobos – for lack of extraterritorial jurisdiction. For the reasons articulated in this Court’s order with regard to Ms. Rafoi-Bleuler, this Court should dismiss the superseding indictment as to Mr. Villalobos.
As set forth previously, Mr. Villalobos is a citizen of Venezuela who lived in Venezuela and was not a public official during the events alleged in the indictment and the superseding indictment. He is charged in Counts, One, Two, and Three of the superseding indictment; Counts Four through Nineteen charge individuals other than Mr. Villalobos. All three counts charging Mr. Villalobos are based on the same course of conduct.
Count One charges that Mr. Villalobos and others, including Ms. Rafoi-Bleuler, conspired to commit money laundering, in violation of 18 U.S.C § 1956(h).
Count Two alleges that Mr. Villalobos and Ms. Rafoi Bleuler (along with uncharged individuals) violated 18 U.S.C. § 371 by conspiring to violate the FCPA (15 U.S.C. § 77dd-2(a)). They allegedly agreed to bribe foreign officials in Venezuela to help U.S. businessmen get paid on contracts from PDVSA (and also allegedly to obtain more contracts).
Count Three alleges that Mr. Villalobos, Ms. Rafoi-Bleuler, and Javier Alvarado Ochoa violated 18 U.S.C. § 1956(a)(1)(B)(i) by conducting, aiding and abetting, and causing others to conduct a financial transaction – “a $515,513.20 wire from Rincon Company 2 [a company located in the Southern District of Texas] to [a] Swiss account [] on or about October 16, 2011” – designed to conceal or disguise the proceeds of a “specified unlawful activity,” i.e., bribery of a foreign official, in violation of FCPA.
In sum, all three counts are premised on the same alleged violations of the FCPA.
[…]
The superseding indictment should be dismissed for three reasons. One, there is no extraterritorial jurisdiction to prosecute Mr. Villalobos for the offenses alleged in Counts One, Two, or Three. Two, this prosecution violates the Due Process Clause of the Fifth Amendment. Third, the superseding indictment is untimely under the five-year statute of limitations.”
The DOJ’s July 7th opposition brief to the motion to dismiss states in summary fashion:
“This Court should deny Defendant’s Motion as premature, as it involves questions of fact that are more appropriately resolved after Defendant appears in the United States to answer the charges against him and receives discovery. Moreover, Defendant’s arguments rely, in part, on this Court’s order dismissing charges against Daisy Teresa Rafoi Bleuler (“Rafoi”). The government has appealed that ruling, and respectfully submits that this Court should await ruling on Defendant’s Motion until the Fifth Circuit has addressed the government’s appeal.
In the event the Court is disinclined to hold Defendant’s motion in abeyance for either or both of these reasons, as explained below, Defendant’s Motion should be denied. Defendant was a sophisticated, international money launderer who engaged in a large-scale scheme to bribe officials of Petróleos de Venezuela S.A. (“PDVSA”), Venezuela’s state-owned and state-controlled oil company. As alleged in the Superseding Indictment, and as will be further proven at trial, Defendant engaged in specific acts in furtherance of the scheme while he was physically present in the United States, including multiple meetings in furtherance of the crimes charged in the Superseding Indictment. Defendant also exploited the United States’ financial system for criminal purposes, and throughout the relevant time period owned a residence in South Florida.
Defendant, who was not a foreign official at the time of the events alleged in the Superseding Indictment, is properly charged with conspiring to violate the Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. § 78dd-1 et seq., with the goal of obtaining business advantages for U.S. businesses and individuals (Count Two). Defendant is also properly charged with conspiring with a U.S. citizen and using the U.S. financial system to launder the proceeds of the bribery scheme (Count One) and with substantive money laundering involving conduct that occurred, in part, in the United States (Count Three).”
